ACA at SCOTUS: Some Thoughts On The Mandate

As you likely know by now, we stand on the cusp of historic oral arguments this week in the Supreme Court on the Patient Protection and Affordable Care Act (ACA), otherwise popularly known as “Obamacare”. The arguments will occur over three days, for a total of six hours, Monday through Wednesday. Yes, they really are that historic, as Lyle Denniston explains in SCOTUSBlog. The schedule is as follows: Monday: 90 minutes on whether the Anti Injunction Act (AIJA) prevents consideration of a challenge to the individual mandate until it takes effect in 2014; Tuesday: Two hours on the Constitutionality of the individual mandate; and Wednesday: 90 minutes on severability of the main law from the mandate and 60 minutes on state sovereignty concerns of Medicaid reform.

There are two areas of particular interest for me and which really are the meat on the bone of the overall consideration. The first is Monday’s technical argument on the AIJA, which I actually think may be much more in play than most commentators believe, because the Supremes may want to punt the politically sticky part of the case down the road until after the 2012 elections, and the AIJA argument is a ready made vehicle to do just that. Judge Brett Kavanaugh’s dissent in Seven Sky v. Holder explains how that would go should the Supreme beings decide to punt. This is by no means likely, but do not be shocked if it occurs; can kicking down the road is certainly not unknown at SCOTUS on politically sensitive cases.

By far, however, the biggest, and most contentious, kahuna of the healthcare debate is the individual mandate, and that is where I want to focus. The two sides, pro (predominantly liberal left) and con (predominantly conservative right), have been selling their respective wares since before the law was passed and signed by the President. As we truly head into the arguments, however, the pro left have crystallized around a matched pair of articles by Dahlia Lithwick and Linda Greenhouse, and the con right around response pieces by James Taranto and Ed Whelan.

Now this hardly seems like a fair fight, as Taranto has no degree, nor legal training, whatsoever; that said he and Whelan actually lay out the contra to Dahlia and Linda pretty well. Each side effectively accuses the other of being vapid and hollow in argument construct. I will leave aside any vapidity discussion because I think both sides genuinely believe in their positions; as to the hollowness, though, I think both sides are pretty much guilty. Which is understandable, there is simply not a lot of law directly on point with such a sweeping political question as presented by the mandate. “Unprecedented” may be overused in this discussion, but it is not necessarily wrong (no, sorry, Raich v. Gonzales is not that close; it just isn’t).

In short, I think both sides are guilty of puffery as to the quality of legal support for their respective arguments, and I believe both are guilty of trying to pass off effective political posturing as solid legal argument. Certainty is just not there for either side. This is a real controversy, and the Supreme Court has proved it by allotting the, well, almost “unprecedented” amount of time it has to oral argument.

All of the above said, I join my friend Dahlia (and, more nebulously, Linda) in predicting the mandate will be considered (i.e. the AIJA argument discarded) on its merits, and the mandate will survive by either a solid 6-3 or 7-2 vote. There is one caveat to that, however. I have long maintained John Roberts will never be the fifth, and swing, vote to uphold the mandate/Obamacare by a narrow split of 5-4. If it comes down to that, Tony Kennedy would have had to have thrown in with the conservatives, and Roberts will never be the swing, nor would Alito or Scalia. But, if Kennedy goes with the liberal bloc, so that 5-4 is already there, Roberts will sign on to make it 6-3 and there might even be one more that signs up to make it 7-2. So, Obamacare either wins by 6-3 or 7-2, or loses by 5-4, and I think the former. You heard it here.

Now, I want to explain why, at least in my eyes, the mandate is no slam dunk and why I think even my friends on the liberal side are perhaps a little rah rahed and puffered on how awesomely clear cut the mandate is. In that regard, a couple of examples of just how important the mandate consideration is, because of how largely writ it can be extrapolated out, should be considered.

The first analogy comes courtesy of David Bernstein at Volokh:

But let’s say the Federal government decided to pass legislation, modeled on longstanding state laws, requiring all residents of the United States to attend school until age 18 or face [some penalty–a fine, or being drafted into “national service” or whatever]. A resident of a state where schooling is only mandatory until age 16 sues, claiming that this is beyond Congress’s enumerated powers.

The government claims that it has the authority under its Commerce power to require school attendance. After all, not only is education is a huge percentage of the American economy, the federal government already regulates the education market to a substantial degree and spends tens of billions of dollars annually for education, money that will to some extent be wasted if children don’t continue their education at least through high school. Thus, it’s both necessary and proper that the government impose an education mandate to ensure that it’s education policies will be successful.

To the argument that a sixteen year old dropout isn’t engaged in economic activity, the government argues that staying out of school is itself an economic activity, because, among other things, it reduces the amount of federal and state aid to one’s school, makes one less marketable in the employment market, reallocates resources that would otherwise be spend on the dropout’s education, and makes it more likely that one will need to spend money on education in the future. Moreover, no one is really “out” of the education market, because everyone is learning things all the time, whether from t.v., one’s friends, Facebook, or formal schooling. Finally, by dropping out of school, a sixteen year old is raising the expected costs to the government and society of future crime, welfare payments, and the like.

Anyone think the government should win?

Actually David, yeah I wouldn’t have a real problem with that. As a sage friend related to me this morning, there is a direct correlation between a nation’s ability to compete in a world market and the level of education provided to it’s citizens. Citizens with less, or poorer, education harm the entire nation – it’s welfare, it’s defense, its very liberties and it’s ability to defend itself against threats and enemies, foreign and domestic. I think that is exactly right; if you accept the individual mandate is constitutionally agreeable, it would be hard to see how you could disagree with an “education mandate”.

I would hazard a guess, contrary to David Bernstein’s point, most liberals, and maybe even many from the right, might have no problem with mandatory education as a corollary act to the healthcare mandate under the Commerce/Necessary & Proper Clauses (though they may, of course, want vouchers and church school subsidization).

Problem is, the analogies can get harder. Much harder. Let’s try this one of my own construct:

Guns and armament are necessary for the national defense, as is a strong and robust domestic weapons industry. It is important to not only encourage adequate arming of the citizenry for protection from terrorists and foreign agents, but to also encourage the manufacturing capability here in the homeland.

Ergo, every citizen, regardless of their age, shall from here forward be mandated to buy a gun (parents will be in charge of, and responsible for, the guns on behalf of the minors until they reach the age of majority). You will, of course, be able to opt out and pay a $750.00 per person, per year, tax penalty for not complying with the mandatory gun purchase and ownership.

You okay with this one too? If so, is there any mandatory purchase legislation you would not be okay with? What would be the threshold discrimination for a compelled commerce purchase law that would not be appropriate to you be then?

The question of whether one believes there is any limit whatsoever on the commerce power of Congress, and whether that is a good or bad thing, exists irrespective of SCOTUS, at least until they rule on this ACA extravaganza. This stuff matters. A lot. I personally find the analogies extremely useful to explore just how committed people are to the political blarney that has been casually cast about as legal argument on this issue – by both sides.

Are the liberal proponents of the mandate, who bellow “it is absurd to even question the issue, obviously the mandate is within the Commerce power!” really willing to follow the import and implication of their arguments out to their conclusion?

Are the conservative opponents of the mandate, who screech “this is unprecedented, and of course Article III courts have the innate power and authority to ban a facially valid law of Congress under the Commerce/Necessary and Proper Clauses!” really willing to accept that authority, control and micromanagement of Article I Congressional will by the Article III courts? Because that is not exactly what they normally say.

There is actually a bit of a paradox in both side’s positions vis a vis their normal views; liberals usually accept more control and regulation by courts on Congressional action as a check and balance, conservatives usually vehemently argue courts have no such proper role.

This is about far more than Obama’s questionably cobbled together ACA law; the law is inane in how it soaks Americans to benefit craven insurance companies. Either way, sooner or later, healthcare as constructed and/or mandated by the ACA will die a painful death, but will continue to decimate American families for years, irrespective of the ruling by the Supreme Court on its nominal constitutionality. At some point, single payer, such as “Medicare For All” is inevitable.

However, the pervasive effects of the Commerce/Necessary & Proper Clause determination on the individual mandate, caused by the nightmarishly cobbled together Obamacare, will shape the direction of the Supreme Court in relation to commerce, business interests and, indeed, potentially American life across the board, for decades, if not lifetimes, to come.

That is what is at stake this week. Yes, it is that big. No, it is not that easy or clear cut. I do not know how it all sorts out for sure, but I do I do think, unlike the vast majority of the political commentators opining in the ether, the Supreme Court understands the consequences for the long run and the gravity of what they are considering. That said, it is still a very political decision for the Supreme beings, and how they calculate that, vis a vis history, is anybody’s guess.

One thing IS certain, when the dust has settled, one side will say the Supremes are beautiful minds, and the other will say they are craven activist tyrants. That is life in the modern Article III existence. Game on!

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49 replies
  1. masaccio says:

    I am more inclined to think the court will kick this can as far down the road as they can. I think they are and should be worried about the reputation of their institution, especially in light of the horrendous decisions in Bush v. Gore, which was obviously political and should have been left to the Florida Supreme Court, and of course the miserable decision in Citizens United, which has enraged pretty much everyone except the rich.

    If they do decide the mandate issue, the decision will be purely political. I think the conservatives are ideologues, and I think their history proves that their only consistent principle is worship of the rich and preservation of their right to rule. This is the worst court we have had since the 1920s, and rivals the whores from the 1890s, who were servants of the Robber Barons.

    That tells me that they will weigh their desire to hammer the President against their genuine and rational fear that they will forfeit all deference and respect.

    But I like your analogies. They show a real legal problem and push both sides to explain themselves in detail. I imagine that the decision will contain a lot of weasel words about this issue, trying to reserve as much as possible to another day. After all, the legal issues are complicated, so this decision should not have precedential value.

  2. Phil Perspective says:

    Bmaz:
    Why would Roberts join Kennedy to make it 6-3? I just don’t see it. Is this really the case he’ll try to prove that he’s not a wingnut on? Did the Citizen’s United experience leave him that chafed that he’s seen the light? Or is it the fact that he knows ObamaCare is a giveaway to the large insurance companies?

  3. Peterr says:

    @masaccio:

    SCOTUS might have a preference for can-kicking, but they aren’t wedded to it. When it comes to political considerations, they can read the polls as much as anyone else, and at this point, Obama seems likely to win reelection — and thus, seems likely to win the right to nominate additional justices if/when any SCOTUS vacancies occur.

    Given that reality, I wonder whether the conservatives might be looking for whatever short-term victory they can find, since the long term prospects look somewhat dimmer.

  4. Bob Schacht says:

    I think SCOTUS will make a decision based on the narrowest possible grounds, which will leave everyone unsatisfied. But this court has shown a willingness to enlarge the scope rather than narrow it, as with Citizens United.

    After the 3 days of hearings, how long will it take them to render a decision?

    Bob in AZ

  5. spanishinquisition says:

    Guns and armament are necessary for the national defense, as is a strong and robust domestic weapons industry. It is important to not only encourage adequate arming of the citizenry for protection from terrorists and foreign agents, but to also encourage the manufacturing capability here in the homeland.

    I was thinking of the same thing – there are any number of ways this could go serious bad. It seems like we are going more and more towards authoritarianism and corporatism and getting a ruling this way would only push us further. I’m hoping that SCOTUS goes 5-4 against, but if they go for it, I feel like it will be for all the wrong reasons. Elena Kagan certainly isn’t going to protect us from her former boss’s authoritarianism.

  6. Bob Schacht says:

    @Peterr: There better be! What with 4 teams in the Sweet Sixteen, the Big Ten flamed out with only one survivor, Ohio State. Wisconsin came within a point of advancing. On the Women’s side, there will be no Cinderella team– only one and two seeds advanced. The only close contest was TX A&M, last year’s winner, vs. Maryland– TX A&M led most of the way, but at about the 4 min mark, Maryland rolled, spurred by tremendous defense, and the #2 seed Maryland won. The rest of the games weren’t even close, with the higher seed winning by substantial margins.

    Bob in AZ

  7. orionATL says:

    bmaz –

    this is a most impressive departure for you from previous posts. you write here like a law prof, or ex-nytimes greenhouse, or my weblog favorite, brian tanamah.

    in my view, very impressive thinking and very impressive writing on your part.

    you are even-handed in your criticism without falling into the corporate newsreader trap of saying, “on the one hand …; on the other hand …”

    you describe the multiple serious legal issues the justices will be troubling themselves with,

    then articulate the non-legal heart of the health care matter with the pp and aca in this comment:

    ” …This is about far more than Obama’s questionably cobbled together ACA law; the law is inane in how it soaks Americans to benefit craven insurance companies. Either way, sooner or later, healthcare as constructed and/or mandated by the ACA will die a painful death, but will continue to decimate American families for years…”,

    finally, you articulate the major legal issues which the health care act has “triggered” to merit scourt review:

    “…However, the pervasive effects of the Commerce/Necessary & Proper Clause determination on the individual mandate, caused by the nightmarishly cobbled together Obamacare, will shape the direction of the Supreme Court in relation to commerce, business interests and, indeed, potentially American life across the board, for decades, if not lifetimes, to come…”

    congratulations on a very well-done analytical piece.

    my personal, cynical opinion?

    it’s mad magazine deja vu:

    harvard law vs harvard law.

    the people lose either way.

  8. orionATL says:

    @Peterr:

    “… When it comes to political considerations, they can read the polls as much as anyone else, and at this point…”

    that was then; this is now.

    the achilles heel of the supreme court these days is that it has no, or almost no, politicians (kagan is the only one).

  9. zm says:

    I still can’t entirely wrap my head around the fact that Liberals are (generally) pro-mandate and conservatives are (generally) against it. As muddled as the arguments have been, the Commerce Clause is in my NAL opinion, fundamentally about compelling competition in a (hypothetically) free market.

    If participant groups constituting a particular industry want to vie for citizens’ patronage, to the extent of attaining complete market saturation, then the product must be affordable for all, not to mention gosh-darn beneficial. Affordable for all is driven, inextricably so, vis the dynamic of opt-out/opt-in (i.e., choice). One cannot remove choice from the basic algorithm without then introducing propped up monopoly into the equation. The most solid pro-mandate argument thus far has been the auto insurance mandate (which is also not entirely comparable because auto policies are still overseen and enforced at the state level). Further, the comparison fails because the ACA mandate applies to one’s person, not a possession (which one may or may not opt to have).

    How can it be that the Left is embracing what amounts to a monopoly on one’s person, in exchange for the kinds of services that should be components of a highly competitive, and therefore sought after, product/service (no pre-existing condition exclusions, no cap & cut off, etc.)? The fact that we are getting further into the stranglehold (as you demonstrate in your parallel examples) as a ‘bargain’ for good service is a harbinger of a system already too far removed from true, dynamic Commerce. Also, too, may it be suggested again that the whole BCP kerfuffle is a prime opportunity to argue not just for women’s rights, but for single payer.

  10. NMvoiceofreason says:

    I think there are fundamental principles at stake which are unlikely to find themselves in any decision of the Supreme Court of the Republican Party.

    The first principle is Qui Bono (who benefits)? The taking of taxes diminishes your value, you are supposed to benefit from common defense and general welfare. If the Commerce Clause is being used to force you to buy something from which you obtain no benefit (like the firearm – which is more likely to shoot you than to protect you) – or a negative benefit – then likely that over-reach should be struck down. In the case of education, both the person and the society benefit. In the case of health care, there is only a statistical likelyhood – a gamblers chance – that the person benefits. This has been good enough to establish standing to sue, so it should be good enough to provide standing to legislate.

    The second principle is conformance. Does the act conform to the outline of governmental powers established by the framers? If it is ultra vires, beyond the powers of Article I to create then it cannot be sustained, despite the necessary and proper clause. Yet we find a historical example directly on point Congress Passes Socialized Medicine and Mandates Health Insurance -In 1798 that the framers thought such powers were so within the scope of Article I there was never even a case to say that it wasn’t.

    The third principle is that general concern about “life, liberty, and the pursuit of happiness”. If the purchase is likely to end your life (as with the firearm), then it probably is a bad idea under some “balancing test” that real lawyers (as opposed to paralegals) could quote to me. If the purchase is likely to preserve your life or enhance your life (as in the health and education mandates) then the balancing test is satisfied and the act may proceed to be enforced.

    But since this court is neither composed of people who respect the rule of law, nor reason, nor precedent, they won’t rule this way. 5 to 4 against, I say.

  11. bmaz says:

    First, I join your recoil (some pun intended) from the gun scenario. That was it’s intent. But, just because you and I do not see gun ownership as overall beneficial, not to mention buildup of domestic manufacturing, it is extremely easy to see how that argument could be made, and I think not all that hard to see how a right wing extremist Congress might could pass it. You think legislatures cannot be so captured ideologically, then come on over to Arizona for a visit. In less than a decade, we went from a stupid legislature to a fucking batshit crazy right wing nutjob legislature with that faction controlling supermajorities in both houses. It can happen, and there is no gun law they might not would pass. It does not matter what you or I or even the Supreme Court would say, because if you buy the government’s argument in the ACA, then if the Congress passed it, it is by definition “commerce” and the Supreme Court would have to give it deference. This is exactly what the argument is about.

    As to the “An Act for the Relief of Sick and Disabled Seamen.” you reference, it is absolutely apples and oranges distinguishable from the ACA. The differences may look small on the surface when disingenuously pitched, as Rick Ungar did in the article you link, but they are enormous. First off, that legislation was a direct and specific tax, not an order to purchase. Secondly it was limited to a specific and dangerous profession and was thus more regulatory in nature. Thirdly, it did not compel purchase from private for profit business entities. Fourth, you could opt out by engaging in another occupation, you cannot with the ACA

    Again, I have not, and do not, state that the ACA mandate is unconstitutional. Nor do I necessarily say that it is, although I think at the end of the day, that is what will be held (at which point it will, by definition, thus be constitutional). My real point in this post is that both sides are making political value judgements and extrapolations from not particularly directly on point law. Which is fine, that is why courts are there – to sort such things out. But neither side is nearly so clear as they let on; this is a real controversy that will be adjudicated and fashioned by the Court.

  12. klynn says:

    Do you think the “pro mandate” thinking will introduced into the arguments, the lowering of our nation’s credit rating, the list of countries with AAA credit ratings, and the approach to healthcare in said countries irt the question of whether one believes there is any limit whatsoever on the commerce power of Congress, and whether that is a good or bad thing?

    The World Health Organization recently rated America thirty-seventh in health outcomes, on par with Serbia.

    California is an interesting “mini study” as the 8th largest world economy being strangled by health insurance costs.

  13. Bay State Librul says:

    Here is my simplistic non-legal argument.

    The State of Massachusetts forces me to have car insurance.
    I have no problem with that… everybody should have insurance in case of accidents.
    The State of Massachusetts forces me to have health insurance. I have no
    fucking problem with that either.
    This is INSURANCE, folks.
    All citizens benefit.
    My freedom is not impinged one fucking iota.
    All these legal arguments blow my mind.

    I’m predicating an 8-1 decision with only Clarence Thomas who lives
    in some retro world as the dissenter.

  14. DWBartoo says:

    Well, bmaz, you have outdone even you own typically impeccable analysis with this one.

    Absolutely superb.

    Well explored analogical “outcomes”, to all of the “puffery” and “posturing”, indeed.

    That something so large should be premised upon so very little, all essentially “political”, in the most very worst sense … is the amazing reality … and where it all shall “lead” … after the decision, which I consider you have “called” and anticipated quite correctly … no one may, or can, possibly know …

    One thing is definitely certain however, bmaz, you deserve a standing ovation.

    Bravo!!!

    DW

  15. lefty665 says:

    @orionATL:

    “my personal, cynical opinion?

    it’s mad magazine deja vu:

    harvard law vs harvard law.

    the people lose either way.”

    Time to stop hiding and come out of the wiring closet. 3rd rate router low q alfred e new(man).

    Your second post is almost as valuable as the first. “the achilles heel of the supreme court these days is that it has no, or almost no, politicians (kagan is the only one).”

    Sure, more knee jerk political hacks are just what the court needs. It’s not shaping up so great now. The other side will get to respond in kind, and the race to the bottom will be on. Oh, that’ll be great won’t it? Justices Cheney and Santorum will bring back “dunking” and burning at the stake. Justices Gore and Kerry wil bring “weight” and the inability to hold an opinion for 30 seconds. That’ll fix everytbing.

  16. Tom Allen says:

    @Bay State Librul: *sigh* (1) No one forces you to buy a car. You are, by necessity, required to have health to live. (2) Insurance is a particularly awful way to provide health care.

    So long as you accept conservative assumptions, conservatives win the argument before it even begins.

  17. NMvoiceofreason says:

    @bmaz:

    I was trying to establish principles upon which to make a rational decision.

    They have even been used in other cases.

    Your point is that they will not use any rational basis.

    That was my final point. 6-3 AGAINST.

  18. beowulf says:

    Mandatory gun purchase is a terrible analogy; Congress’s Militia powers that are broad enough to shanghai teenagers and send them to Vietnam are certainly broad enough to cover your hypo. In fact, the Militia Act of 1792 addressed this very issue.

    “That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball…”

    I think the Court will bounce the case on the tax issue (Kavanaugh is a sharp judge, will very likely end up appointed to USSC by a Republican president). If they do reach the merits, since they’re still sore at the President over the Citizens United pushback, I think they’ll whack the mandate in such a way as to maximize the administration’s embarrassment. The mandate isn’t necessary since the issue could have been avoided simply expanding the Medicare system (clearly constitutional under the Taxing power).

  19. bmaz says:

    @beowulf: There was never a high probability of it being punted via Kavanaugh’s AIJA “tax issue”, and there is about zero after today’s oral argument on that issue. Secondly there is a difference between your archaic Militia Act reference and forcing every citizen (not household) to PURCHASE a gun. I actually find the analogy very useful.

  20. orionATL says:

    @lefty665:

    “…Sure, more knee jerk political hacks are just what the court needs.”

    you really don’t have a very good grasp of american politics.

    the members of the court these days are not politicians. they are academics and corporate lawyers and several are ideologues to boot.

    these non-politicians are not creating a very helpful record for the nation. politicians on the supreme court would be welcome in part because they are more aware of a range of group interests.

  21. par4 says:

    Liberals are not “of the Left”. Socialists are of the Left. Communists are of the Left. Please quit redefining the political spectrum. Liberals are a bunch of spineless worms who have been making common cause with the Fascists of the Right for decades.

  22. William Ockham says:

    Your hypothetical about guns is clearly a violation of the 2nd Amendment. Just as freedom of religion includes freedom from religion, the right to keep and bear arms must include the right to be free from keeping and bearing arms.

    [Mostly joking here.]

  23. masaccio says:

    @zm: I don’t think you should assume that the left favors the individual mandate. If it goes, and the rest of the statute stays, the insurance companies will go nuts because of the free rider problem. That might lead to real solutions, or it might lead to something so much worse that eventually even the most ideological self-reliers among us are forced into something that will deal with the health care problem.

    After all, there is a whole lot of unpaid medical debt out there. How long with doctors and hospitals put up with it?

  24. SpanishInquisition says:

    @Bay State Librul: “The State of Massachusetts forces me to have car insurance.
    I have no problem with that… everybody should have insurance in case of accidents.
    The State of Massachusetts forces me to have health insurance. I have no
    fucking problem with that either.”

    I agree with you a 100% to that point – the state you are in can decide to do that, but we are talking about federal laws, which are different from federal regulation. By all means support multiple states adopting their own Romneycares, but that is different than the federal government. The state government also regulates the drinking age – not the federal government – but with opening up the door at the federal level, you are letting the next conservative President/Congress walk all over everyone’s life in all 50 states with the keys you are giving them…and while they’re taking away everyone’s freedoms they can point back to your post saying that no freedoms are impugned.

  25. lefty665 says:

    @orionATL:

    Dear Mr. “What, me worry?”, Time for some of the rest of us to STFU and give the folks with legal cred some room to explore the issues. If we listen instead of running our mouths we might learn something. One of bmaz’s points is that there’s been far too much uninformed blather. Next you’ll be quoting the neo cons at the Washpost under the illusion you’re adding something profound. Please give it a rest.

  26. rilkefan says:

    I don’t see the gun analogy. Congress can regulate the effectively national health insurance market by insisting companies accept everyone per the Commerce Clause. It’s necessary and proper to do so through the mandate, emphasis here on “necessary”. Everyone participates in it already, whether they like it or not. In order to support the domestic arms industry it’s sufficient to have a big army or police force – it’s not at all necessary to force people not participating in the relatively tiny gun market to do so. This appears to me to be just another version of the silly broccoli argument.

  27. orionATL says:

    @lefty665:

    your reasoning is tripping over your anger.

    just read the article i cited at #24. you’ll be better informed and i’d bet you’ll find it interesting.

  28. lefty665 says:

    @orionATL:

    Dear Mr. “What me worry”, I’m not angry. Sounds like you’re displacing your own emotions.

    Keep your trap shut and listen occasionally. You might learn something. Letting folks have an unobstructed conversation in their areas of expertise is good for the community. It also means everyone else does not have to wade through clutter to get to content.

  29. spanishinquisition says:

    @rilkefan:

    “Congress can regulate the effectively national health insurance market by insisting companies accept everyone per the Commerce Clause. It’s necessary and proper to do so through the mandate, emphasis here on ‘necessary.’Everyone participates in it already, whether they like it or not.”

    You are confusing health insurance with health care. In any event Congress as you say telling health insurance companies they must people can just be left at that…it’s nice for corporate welfare and profit protection as corporate lobbyists will be thrilled, but corporate welfare is hardly necessary. Candidate Obama himself said that a mandate wasn’t necessary, but once he got into office he instead gave us wasteful and needless corporate welfare.

    “In order to support the domestic arms industry it’s sufficient to have a big army or police force – it’s not at all necessary to force people not participating in the relatively tiny gun market to do so. This appears to me to be just another version of the silly broccoli argument. “

    Actually defenders of the mandate have indeed said the broccoli argument was valid, so you are validating the arms industry – what has been said was that Congress wouldn’t do it, not that Congress couldn’t do it. Actually you don’t even understand the argument you are trying to make. It is about regulating commerce, which you admit is a market and hence would fall under the Commerce Clause. You also are trying to claim that there is only one way of doing regulation, but as Obama showed with ACA, there are many ways of writing a bill, but if this goes for Obama that would still make them “necessary.”

  30. rilkefan says:

    You are confusing health insurance with health care.

    No, I’m making a careful distinction.

    [lots of irrelevant politics skipped]

    I’m to Obama’s left on this, but the constitutionality argument is still simple and clear. I pointed out where the gun analogy falters at several points. And I referred to the broccoli argument, which defenders of the mandate think is a) usually dumbly presented and subject to a SDP objection and a simple substitution argument and b) a parade of horribles that is taken care of by the political system. Congress can quite constitutionally do a whole lot of intensely stupid things. bmaz should just ask for limiting principles so supporters can point to the usual ones, and beyond that we just have to fight for our political positions.

  31. bmaz says:

    @orionATL: Um, okay, let us be nice to each other. I was able to converse politely last night on this with a WSJ/Fox News dude; I think we can at least do so here at Emptywheel.

  32. bmaz says:

    @rilkefan: Well.

    “the Constitutionality argument is still simple and clear”

    Uh, no. Just no. The decision may be, well, decisive, but it is nowhere near being all that clear. If you think that, you do not understand Constitutional analysis.

  33. greenharper says:

    @Bay State Librul: I am a bona fide Bay State liberal.

    I have a huge problem with being forced to buy medical insurance from a private insurer. What’s the difference? Several reasons:

    1) I can opt out of needing car insurance by living without a car. In fact, for a dozen or so years, I did so.

    2) I cannot opt out of needing medical care, at least, as long as I’m breathing.

    3) Auto insurers are subject to state regulation to a far greater extent than medical insurers. They are almost like a utility.

    I realize that all of this does not make for a neat issue, litigable in any existing legal category of which I know. Somehow, a human right to life does not make it into U.S. jurisprudence once the human in question is born.

  34. orionATL says:

    @bmaz:

    i’m a very nice commenter 90% of the time, at least. look it up, bmaz – there’s a written record to consult.

    in fact, for years i have deliberately made comments that demonstrate my appreciation for other’s comments that i find interesting or informative – rare behavior on this site.

    it impresses me that this behavior is so uncommon here. i attribute that to the ignore-the-other-unless–they-offer-status-or-special-knowledge mindset that has always been paramount at this site from the time i began commenting here. i personally consider that mindset very rude and attribute my objection to sub-cultural differences and need-to-succeed factors.

    what is the case, here and now, is that a rowe between two commenters (of which i am one), upsets other commenters and potential commenters and destroys the intellectual “rhythm” of the conversation.

    for that i am responsible.

    night-night :>))

    and thanks for a fine essay on the impending supreme court ruling on the health care act.

  35. rilkefan says:

    @bmaz: Note “argument”. And note that I’m not impressed with yours, so I don’t see why the decision merits any more consideration than Lithwick and Greenhouse say.

  36. P J Evans says:

    @klynn:
    Actually, it’s being strangled by the supermajority required to pass tax increases (or new taxes of any kind). Combine that with legislators who think that ‘no’ is a good way to fix all problems involving average people, and you get a legislature that’s pretty much in gridlock all the time. And a budget that can’t cover the required funding.

  37. bmaz says:

    @rilkefan: Of course you don’t. The oblivious in a tunnel rarely see anything but the walls. Press on man.

    Understand though, that while I think the decision may go the way of Dahlia and Greenhouse, I do not think it is so crystal clear as you portray it, and I will bet real money that the discussion of the issue so reflects.

  38. bmaz says:

    @rilkefan: Oh, and because ethics compels me to do so, I affirmatively admit that was a complete sucker’s bet I made at 43. If you really want to take it, well, okay.

  39. Bay State Librul says:

    @Tom Allen:

    The ‘greater good” trumps these legalistic bullshit arguments.

    “Just 2 percent of the U.S. population would be subject to the aspect of health care reform at the center of a constitutional challenge before the Supreme Court this week — the individual mandate, a study released Monday by the Urban Institute found. The analysis said 98 percent of Americans would either be exempt from the mandate — because of employer coverage, public health insurance or low income — or given subsidies to comply.”

  40. Bay State Librul says:

    The dumb-ass Republican position as seen through the eyes of Rep. Louie
    Gohmert

    Charlie Pierce nails it

    “…if this president has the authority under ObamaCare… to trample on religious rights, then some redneck president’s got the right to say, ‘you know what, there’s some practices that go on in your house that cause people too much money and healthcare, so we’re going to have the right to rule over those as well.'”

    I, for one, am looking forward to protesting the eventual individual mandates requiring me to purchase chicken in a bucket and make a yearly hajj to Branson, Missouri. Freeeeeedoooooommmmmmm!

  41. Bay State Librul says:

    @bmaz:

    Indeed
    I am eating my broccoli for supper tonight.
    Good for detox..

    “Broccoli has a strong, positive impact on our body’s detoxification system, and researchers have recently identified one of the key reasons for this detox benefit”

  42. liberalrob says:

    I’m a liberal (see the handle) and I’ve never been in favor of the health insurance mandate since it was proposed. I hope it goes down in flaming defeat, by more than 5-4. If the federal government wants to mandate that citizens buy something, let it provide it via taxation.

    I really don’t see the Constitutional complexity here; everyone is contorting themselves to try to make this harder than it should be. The Commerce Clause concerns regulation of commerce, not mandatory provision of services. Confusion arises because we’ve evolved an immoral health care system where a citizen’s very survival depends on their association with a corporate entity motivated only by profit. We have allowed commerce to invade the sphere of rights, and the ACA represents a ham-fisted effort at stuffing that genie back in the bottle. By rights it ought to fail, and our leaders should be forced to come to grips with the real issue they’ve been ducking: is health care a right, or a privilege?

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