Everyone and their dog is reporting that the United States Supreme Court has granted certiorari to consider aspects of the health care form reform law. Scotusblog is consistently one of the best sources for information about the Supreme Court, so I recommend its entry here. The Court has set aside 5.5 hours for argument which is a record for modern court proceedings. Somewhat oddly, I believe, the court is picking for review various issues from more than one of the challenges.
Here, in summary, is what the Court’s orders on Monday did:
* Granted, the issue of “severability” of the insurance mandate from the other provisions of the law, if the mandate is nullified (the only question in National Federation of Independent Business v. Sebelius [docket 11-393] and question 3 in Florida, et al., v. Health & Human Services Department [11-400]), cases consolidated for 90 minutes of oral argument.
* Granted, the constitutionality of the insurance mandate (question 1 in the government case, Health & Human Services Department v. Florida, et al.), two hours of oral argument.
* Parties directed to brief and argue whether the lawsuit brought by the states to the insurance mandate is barred by the Anti-Injunction Act (an added question in the government case, 11-398); one hour of oral argument. (That order appeared to be limited to reviewing whether that Act only bars states from challenging the mandate; the question of whether that Act bars private entities from challenging the mandate was raised in the Liberty University case, and the Court did not grant that petition.)
* Granted, the constitutionality of the Medicaid expansion (question 1 in the Florida, et al., case, 11-400, one hour of oral argument.
I don’t have a lot to add at this point except that, if the Supreme Court overturns the health care reform law, it will likely be disastrous. I’m not saying I have a high level of confidence about the good the reform law will ultimately do. It’s a mish-mash of what was politically feasible at the time. If it’s discarded, we can be certain that there will be no substantial reform efforts for another generation. And we all know for a certainty that the current system is broken. That might not be quite true; maybe some are arguing that what we have now is good. But I don’t see how that argument can be made convincingly. Under the current system, our country pays more for healthcare and gets the same or less than just about anyone else in the industrialized world. Tales of bad faith denials are legion. Health care expense is an anvil around the necks of business, government, and individuals alike.
The other interesting suggestion I have heard is that opponents are making the individual mandate out to be more complicated than it is. Congress could have imposed a straight on tax to pay for health care. If you make more than $x, then you have to pay $y as a tax. Objecting to the individual mandate approach, whereby individuals are required to acquire insurance of some kind – even it it’s through a private insurer, seems like an objection that government isn’t involved enough in health care. Now, I suppose some would argue that the federal government couldn’t even impose a tax to pay for citizen health care; but, that seems very far outside the commerce clause jurisprudence of the last century, if not century and a half.
The ends don’t justify the means. That can mean that we don’t torture, that we don’t invade Iraq to get rid of Saddam, or that we don’t force people to buy a product (health care).
I think everyone knows that the healthcare law contained a bunch of things that were total crap. Why can’t we start throwing out the chaff & keep the good stuff?
This goes for the Republicans as well. They never should have talked about repeal for the full law. If they would have identified 10 of the worst parts, Obama would have signed a law removing those. Repeat that again and again until he won’t sign. I bet the law would be a lot thinner by then, and it might even be constitutional.
When governments tax, they force people to buy a product (schools, police protection, wars, whatever); so I can’t go along with that as a reason compelling rejection of the individual mandate.
A more convincing argument would be that it’s bad policy — forcing people to spend more and get less; though, in light of what we have currently, that will be a tough argument. Certainly, I think single payer would be better policy — and, would be paid for more like a straight forward tax. But, that was apparently politically impossible.
Without the individual mandate, the rest of it falls apart. The nature of health insurance is that the healthy pay for the less healthy. If you’re going nation wide with health coverage, that’s going to mean young adults paying for elders and children.
So you don’t see the difference between the government forcing you to buy a service that it provides (police protection), and forcing you to buy the services of a third party?
If there was some recourse, I could live with it. For example, the EPA (and my town) forces me to hire someone to certify the backflow preventer on my inground sprinkler system every year, costing me $100. But I could always rip out my sprinkler system if I don’t like it.
I think that the US spends more on health care than other countries because we can. This will not change under Obamacare or any other system. People WANT more health care spending. That more spending does not equal better health (as true in any other country as here, read that RAND study again, most health care spending is waste) is really irrelevant.
I am against Obamacare because it stands in the way of real health care reform: people paying for more routine care out of their own pockets and less care being paid for by third parties. That is the road we were on before Obama grabbed the wheel.
governments routinely subcontracts their services to private vendors, and conservatives usually cheer when they do, so why is this so much worse?
futhermore, if you truly don’t want to buy health insurance under the “mandate”, then you just pay a small fine. nobody is actually going to force you to buy insurance.
stAllio!, it might be semantics, but that is what law is based on. Had they worded it that this fine was actually a tax (it is), and if you have health insurance, you get an exemption from this tax, I don’t think there would be any grounds to strike the law down.
The health care reform law seems like it was written with crayons.
So let’s be clear here: under the liberal orthodoxy of sTallio and Doug:
(1) paying taxes to the government is the same thing as buying something at the grocery store.
(2) There is no difference between state government powers and federal government powers. They are all just “government powers” and it doesn’t matter who weilds it. This is despite all of the clear distrinctions between federal and state powers that were made in the Constitution and the Bill of Rights.
Ugh.
paul c: you seem to be confused by our use of a literary device called analogy. it involves comparing similarities between things, but it doesn’t mean those things are the same.
for example, i believe you and buzzcut are both wrong on this issue, but that doesn’t mean that i believe you’re the same person, nor even that you’re wrong in precisely the same way.
i hope that clears things up!
Fortunately stAllio, the law and the Cosntitution don’t seem to care much about “analogy”. It’s really simple, there are two questions here, that supporters of Obamacare frequently try to frame as one.:
(1) Is the law a good law? and (2) Is the law a constitutional law?
Those are not the same question. Nor is it relevant what Congress COULD have done. Doug’s comment about a tax to provide for health-care for all is very true, but the Democrats chose not to pursue that road, leaving us in the present place.
Doug is a “liberal”?
Maybe in the classic sense of the word (maybe), but that sense of the word has died off in the last twenty years.
Or, are you just raising the spectre that Doug (gasp!) isn’t “one of us”*, using a boogeyman codeword?
* a purported group who don’t want “lazy, ignorant” people given anything in the form of monetary assistance or charity from the “government”, but who seemingly have absolutely no problem with their own political leadership gifting millions of dollars to themselves and their cronies from the very same source.
democrats “chose” not to pursue single-payer in a futile attempt to attract votes from republicans who insisted it was a deal-breaker.
of course, as we all know, this was pointless because republicans were determined to filibuster any health care bill that came along.
I don’t know what label fits me at the moment. To the extent that “liberal” is a catch all term for everything that falls outside of the tribal conservative orthodoxy of the moment, I guess it fits well enough.
I tend to step around the finer legal points of policy in these sorts of on-line arguments about health care because I’m cognizant that most “conservatives” aren’t truly concerned about the answer – in the sense that, “gee, I’d be fine with Obama’s health care initiatives if only I didn’t have a deep and abiding belief that the Constitution doesn’t permit it.” For the most part, they are just looking for any rock that’s handy at the moment. I don’t know that it does much good to sit around and analyze the rock too closely; because, hey, they’re just throwing rocks.
And, I really have to beg to differ on the role of analogies in the legal system. The common law is essentially one analogy stacked on another; for centuries.
varanian: I didn’t use the word “liberal” as a negative term and no offense was attempted by the use of the word. It appears that you are tilting at windmills here. In addition, the “us” vs. “them” mentality you offered is a great example of what is wrong with politics today.
stAllio: Then it appears that the Dems chose badly (unless they couldn’t have corralled their own votes for a single payer system.
Doug: I haven’t noticed too many Dems (can’t say “liberal” without causing offense apparently) that say “Obamacare is a good thing, too bad it isn’t constitutional.” So the bias appears to go both ways.
For the most part, they are just looking for any rock that’s handy at the moment. I don’t know that it does much good to sit around and analyze the rock too closely; because, hey, they’re just throwing rocks.
How would you know? No offense, but from what I’ve seen, what you know about conservatives Constitutional argument is… not much.
I might even go so far to say that your understanding of Constitutional arguments in general is… not up to my expectations, considering your education. ;)
Maybe I just expect too much from lawyers. I am always amazed at what they don’t know (speaking generally of election law, where I have a lot of amateur experience, but in other areas as well).
I don’t know much, but one thing I do know is that disagreeing with Buzzcut necessarily comes from ignorance. How could it be otherwise?
Buzzcut appears to be of the school that anyone who disagrees with him is an ignorant moron. Shame.
And other than the composition of the U.S. Supreme Court, a body I am admitted to practice law before, I can’t see much myself that could be unconstitutional, based on the last 75 years of Commerce Clause cases. Now, the Justices may change their minds, but that would have a ripple effect far beyond the health care law.
As to the Affordable Care Act itself, it strikes me as does much legislation, as a Rube Goldberg invention created by legislative log-rolling. The result is not attractive, and it remains to be seen if it actually works. I would have prefered the public option myself, but suspect that was not going to get a majority, esp. from Blue Dog Democrats. As Doug and others note, not a chance in Hades of the Republicans voting for anything like that, so concessions to them were unnecessary. But the right of the Democratic Party (and it DOES exist) had formidable objections themselves. So this was all that could be obtained, alas.
I was just pointing out what I perceive to be a wee bit o’hypocrisy (or blindered looks in the mirror).
It works on both sides of the political fence, and I admit that I neglected to mention that pont.
I didn’t use the word “liberal” as a negative term and no offense was attempted by the use of the word.
oh, come on! the comment was clearly meant to be a dig, starting from your use of “liberal orthodoxy”, on through the part where you deliberately oversimplified doug’s comments and mine in a failed attempt to make us look stupid, right down to the finale where you pretended to be exasperated with your own straw man argument.
Come on, guys. You started it by saying that conservatives are more interested in rock throwing than making ideologically consistent arguments.
Bah. Buzz, a “you started it” conversation admits guilt. There is no guilt here. As a reminder, the relevant part of the comment was: “So let’s be clear here: under the liberal orthodoxy of sTallio and Doug” If people want to take offense at the highlighted comment above, they really need thicker hides.
I also appreciate how stAllio presumes to know that my comment was a (failed) attempt to make him look stupid. It is a bit difficult to have conversations with mindreaders like stAllio.
My personal opinion is that requiring people to purchase health insurance from private companies is wrong. Whether it’s unconstitutional or not I don’t know, but it feels, to me, like a terrible idea.
Honest question: if forcing people to buy health insurance from private companies is unconstitutional, is privatizing government services, like prisons, also forcing people to buy services from private companies and thus unconstitutional?
Donna, sweetie, do you also think it’s wrong that everyone is required to purchase car insurance? If it’s unconstitutional to force people to buy services from private companies, then car insurance is unconstitutional.
Pookie, I don’t have to drive, therefore I don’t have to buy insurance.
Putting requirements on optional activities is fine. Requiring purchase of something by law just for living isn’t.
Again, I think they would have been fine adding a tax, with an exemption if you have your own insurance.
Can we please stop calling it “car insurance”? Even if you drive you don’t have to have “car insurance.” Whether or not you insure your own vehicle against damage is entirely up to you.
The requirement is for liability coverage for yourself for the damage you might cause to others. And as Jason points out, there is a massive difference between requiring coverage to protect others as a precondition for participating in an optional activity, and requiring coverage to protect oneself as a requirement for simply being alive. That’s not necessarily to say that the individual mandate is unconstitutional/wrong/a bad idea; it’s just that the supposed equivalency many people like to make between driver’s liability coverage and the individual mandate is completely bogus, and it’s something I’ve been fighting for nearly two years now.
(clarification: it’s the false equivalency that I’ve been fighting)
Pookie: In addition to Jason and steelydan’s valid correction(s) (I heart steelydan), it is important to note that the state is the entity that requires car insurance, not the federal government.
Pookie, call me patronizing names all you like, but the car insurance parallel has been totally discredited for the reasons steelydan and Jason stated above long before this bill even became law.
What I’m asking, and I know this relates to whether it’s a tax or an outright purchase but I just can’t quite get my head around the difference, is if we are required to pay taxes, which we are, that then go to a private company, like a prison contractor, how is that different from forcing us to buy health insurance from a private company? In the case of the prison we don’t have a choice who our incarceration-designated tax dollars go to, we pay them without choice, but it’s not a direct purchase by the consumer.