Obamacare and the Supreme Court

[ERCougar]

I think I heard a clip of some justice asking what limits there are to federal power. If Obama care is declared "constitutional" I'd say there isn't much. Clearly this isn't what the founders had in mind when thinking of a strong, limited, central government. Well, maybe Hamilton, but he might be it.

Anyway, it won't be overturned. This is more than about paying for healthcare; under the rubrick of healthcare, the Feds will be able to have a much bigger say in more of our everyday choices. We're doomed.

'Doomed'? Doesn't that seem a bit melodramatic? I can understand disagreeing, but doomed seems a bit much? Can you give me some real life examples of how this would play out? I'm not making argument here--I'm sincerely curious at how this could really impact my life outside of health insurance.

This SCOTUS discussion is fascinating, at least to me, who knows very little about this stuff. Keep it up.

[Paperback Writer]

I LOL at that Rachel Maddow commercial showing her standing at Hoover Dam extolling how the Democrats are for big government projects. Uh huh, like there's any way in hell the environuts would let something like that happen again.

Not to split hairs (I haven't seen the Rachel Maddow commercial) but Hoover dam was planned, authorized, and constructed (initially) under the republican adminstrations of Coolidge and Hoover. Thats why it's called....Hoover Dam. (Although it was completed under FDR).

[Tex]

'Doomed'? Doesn't that seem a bit melodramatic? I can understand disagreeing, but doomed seems a bit much? Can you give me some real life examples of how this would play out? I'm not making argument here--I'm sincerely curious at how this could really impact my life outside of health insurance.

This SCOTUS discussion is fascinating, at least to me, who knows very little about this stuff. Keep it up.

I recommend you listen to some clips from oral arguments, or search the transcript for the term "limiting principle" and you'll find some real world examples cited.

The question is, if the gov't can do this under the Commerce clause, what can't they do? At one point, Scalia puts it this way, based on a comment by Roberts:

CHIEF JUSTICE ROBERTS: That's the area that Congress has chosen to regulate. There's this health care market. Everybody's in it. So, we can regulate it, and we're going to look at a particular serious problem, which is how people pay for it. But next year, they can decide everybody's in this market; we're going to look at a different problem now, and this is how we're going to regulate it. And we can compel people to do things -- purchase insurance, in this case; something else in the next case -- because you've -- we've accepted the argument that this is a market in which everybody participates.

GENERAL VERRILLI: Mr. Chief Justice, let me answer that, and then if I may, I'd like to move to the tax power argument.

JUSTICE SCALIA: Can I tell you what the something else is so -- while you're answering it?

(Laughter.)

JUSTICE SCALIA: The something else is everybody has to exercise, because there's no doubt that lack of exercise cause -- causes illness, and that
causes health care costs to go up. So, the Federal government says everybody has to join a -- an exercise club. That's the something else.

That's just one example. The contention by the challengers is that there really is no limiting principle at all, and Congress could really use the Commerce Clause to compel you to buy any given good or service.

If Obamacare is upheld--and after today I have my doubts--Kennedy and maybe Roberts will try to hold that health insurance is a narrow exception. If that happens, it will be an extraordinarily flimsy opinion, one that probably won't stand in the long run.

[venkman]

Not to split hairs (I haven't seen the Rachel Maddow commercial) but Hoover dam was planned, authorized, and constructed (initially) under the republican adminstrations of Coolidge and Hoover. Thats why it's called....Hoover Dam. (Although it was completed under FDR).

Good point. She wasn't really making a pro-FDR point, but a pro-government should spend a shitload of money on big projects point.

Not that today's Dems would ever be for something like this again, but today it would probably be ten times the cost in today's dollars and take ten times as long due to our outrageous environmental and other regulations.

[venkman]

'Doomed'? Doesn't that seem a bit melodramatic? I can understand disagreeing, but doomed seems a bit much? Can you give me some real life examples of how this would play out? I'm not making argument here--I'm sincerely curious at how this could really impact my life outside of health insurance.

This SCOTUS discussion is fascinating, at least to me, who knows very little about this stuff. Keep it up.

The possibilities are endless. Think about it: almost everything you do affects your health, and since everyone is sharing the costs of healthcare, shouldn't everyone have a say in your lifestyle choices? From guns and hunting to owning and riding motorcycles? Not saying it would happen, but this would give an "in" to the nanny statists who want to limit our choices and eliminate the risks associated with living in the land of the free/home of the brave.

As Justice Kennedy said today, this law potentially changes the relationship between the citizens and the government.

[All-American]

Tuesday's transcripts are up.

http://www.supremecourt.gov/oral_arg...98-Tuesday.pdf

[Portland Ute]

If the mandate is declared unconstitutional, then what is left?

1) Universal, single-payer, government health care?

2) Back to what we've been doing prior to Obamacare?

3) Extending health care only to those that have insurance and/or can pay for it out of pocket?

Seems like 2 and 3 are not really legitimate options.

With a mandate being taken off the table, aren't we looking at a large push towards socialized medicine/single payer system?

While this mandate may well be unconstitutional, striking it down may send us down the path towards true socialized medicine, no?

[old_gregg]

If the mandate is declared unconstitutional, then what is left?

1) Universal, single-payer, government health care?

2) Back to what we've been doing prior to Obamacare?

3) Extending health care only to those that have insurance and/or can pay for it out of pocket?

Seems like 2 and 3 are not really legitimate options.

With a mandate being taken off the table, aren't we looking at a large push towards socialized medicine/single payer system?

While this mandate may well be unconstitutional, striking it down may send us down the path towards true socialized medicine, no?

depends on how the hearing re: severance goes

[Portland Ute]

depends on how the hearing re: severance goes

Since I'm not an attorney, do you care to explain? What does severance refer to and how does it affect future healthcare?

[Jacob]

If the mandate is declared unconstitutional, then what is left?

1) Universal, single-payer, government health care?

2) Back to what we've been doing prior to Obamacare?

3) Extending health care only to those that have insurance and/or can pay for it out of pocket?

Seems like 2 and 3 are not really legitimate options.

With a mandate being taken off the table, aren't we looking at a large push towards socialized medicine/single payer system?

While this mandate may well be unconstitutional, striking it down may send us down the path towards true socialized medicine, no?

Look up John Mccain's plan in 2008. Something like that is much more likely under republican rule. And it w ould be a big improvement.
Dems no longer have 60 seats in the house and control of the house. So I don't think single payer is in the cards.

[Pelado]

Here's one mention of the single-payer system in an exchange with the Solicitor General (for Obamacare):

JUSTICE KENNEDY: I'm not sure which way it cuts, if the Congress has alternate means. Let's assume that it could use the tax power to raise revenue and to just have a national health service, single payer. How does that factor into our analysis? In one sense, it can be argued that this is what the government is doing; it ought to be honest about the power that it's using and use the correct power.

On the other hand, it means that since the Court can do it anyway -- Congress can do it anyway, we give a certain amount of latitude. I'm not sure which the way the argument goes.

GENERAL VERRILLI: Let me try to answer that question, Justice Kennedy, and get back to the question you asked me earlier. The -- the -- I do think one striking feature of the argument here that this is a novel exercise of power is that what Congress chose to do was to rely on market mechanisms and efficiency and a method that has more choice than would the traditional Medicare/Medicaid type model. And so, it seems a little ironic to suggest that that counts against it.

Respondents (against Obamacare) response to constitutionality of single-payer system:

JUSTICE SOTOMAYOR: So the -- I -- I want to understand the choices you're saying Congress has. Congress can tax everybody and set up a public health care system.

MR. CARVIN: Yes.

JUSTICE SOTOMAYOR: That would be okay?

MR. CARVIN: Yes. Tax power is -

JUSTICE SOTOMAYOR: Okay.

MR. CARVIN: I would accept that.

Respondents (against Obamacare) give their take on whether States can implement an insurance mandate (like Massachusetts):

JUSTICE SOTOMAYOR: Could you tell me, do you think the States could pass this mandate?

MR. CLEMENT: I represent 26 States. I do think the States could pass this mandate, but I -

JUSTICE SOTOMAYOR: Is there any other area of commerce, business, where we have held that there isn't concurrent power between the State and the Federal Government to protect the welfare of commerce?

MR. CLEMENT: Well, Justice Sotomayor, I have to resist your premise, because I didn't answer yes, the States can do it because it would be a valid regulation of intrastate commerce. I said yes, the States can do it because they have a police power, and that is the fundamental difference between the States on the one hand and the limited, enumerated Federal Government on the other.

Unrelated, but funny in a SCOTUS kind of way:

JUSTICE BREYER: I see the point. You can go back to, go back to Justice Kagan. Don't forget her question.

JUSTICE KAGAN: I've forgotten my question.
(Laughter.)

MR. CARVIN: I -- I was facing the same dilemma, Justice Kagan.

JUSTICE GINSBURG: Let me -- let me ask a question I asked Mr. Clement. It just seems -

JUSTICE KAGAN: See what it means to be the junior justice?
(Laughter.)

[All-American]

Since I'm not an attorney, do you care to explain? What does severance refer to and how does it affect future healthcare?

Severability is the idea that if one of a bill/contract/legal document's provisions is found unlawful, others may still remain in effect.

For example, let's say you and I have signed a contract in which I offered to sell you a product at a certatin price, and that one of the provisions of the contract said that you could hold my neighbor (who is not a party to the contract) liable if the product breaks and injures anybody. The last provision is obviously unenforcable. If we've included a severability clause in our contract, that last provision can be stricken, but the sale of the product at the given price will still stand. Some provisions are nevertheless so codependent that to find one unenforcable means that the other is too. If, for example, somebody passed a law saying I cannot sell my product to you below a certain price, and our contract called for a sale below that price, not only would you not have to pay me that price, but I wouldn't have to give you the product. Both provisions would be nullified.

The question in this case is whether Obamacare's various other provisions are likewise so dependent upon the mandate's existence that to find the mandate unconstitutional requires that the rest of the law be stricken. The argument here is that congress would never have agreed to impose conditions like banning discrirmination on the basis of preexisting conditions unless they could also force healthy people to buy insurance, since otherwise, any idiot would know better than to buy insurance before he needed medical treatment. The other side of the argument, I imagine, is that this was just one way to fund that provision, and that if this one is unconstitutional, the Congress may select another.

[ERCougar]

The possibilities are endless. Think about it: almost everything you do affects your health, and since everyone is sharing the costs of healthcare, shouldn't everyone have a say in your lifestyle choices? From guns and hunting to owning and riding motorcycles? Not saying it would happen, but this would give an "in" to the nanny statists who want to limit our choices and eliminate the risks associated with living in the land of the free/home of the brave.

As Justice Kennedy said today, this law potentially changes the relationship between the citizens and the government.

How has this played out in Europe or other single-payer countries?

[myboynoah]

How has this played out in Europe or other single-payer countries?

If the government takes on the role of providing a basic level of health care, then citizens don't need to purchase private health insurance (unless they want to enhance the healthcare the government provides). It is then not considered "commercial" activity.

[ERCougar]

If the government takes on the role of providing a basic level of health care, then citizens don't need to purchase private health insurance (unless they want to enhance the healthcare the government provides). It is then not considered "commercial" activity.

No, I get that part. But the "nanny state" impulse should exist to an even greater extent there and I'm curious how it has played out. Or maybe similar protective commerce clauses exist in their constitutions? I honestly don't know.

At the very least we should see it play out in their tax structures (i.e. heavier taxes or even bans on certain unhealthy products/behaviors. Cigarettes for example?)