JONATHAN COHN MARCH 18, 2012
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Next week the Supreme Court hears oral arguments in the lawsuits challenging the Affordable Care Act. But is it really the “case of the century,” as pundits have started calling it?
It’s difficult to say without knowing the outcome. Presently that distinction belongs to Bush v. Gore, a decision that may have truly altered history. Just think how the years after 2001 would have unfolded if Al Gore had been president. But Bush v. Gore didn’t change constitutional doctrine. The five justices voting to end the Florida recount and make Bush president wrote that their argument was "limited to the present circumstances" – in other words, that they were not making broader arguments about federal power over elections and interpretation of the equal protection clause.
That claim provoked widespread derision within the legal establishment, which took the statement as a sign even the judges understood they were standing on a weak legal foundation. But the justices may get their way. Most experts still consider Bush v. Gore bad law.
Rejecting the Affordable Care Act could deprive 30 million people of health insurance, weaken the coverage for tens of millions more, and alter one-sixth of the economy. In those respects, obviously, it would be a highly consequential decision. But such a ruling could also have have far-reaching legal effects, the kind Bush v. Gore did not. At least in theory, the court could use this case to redefine the boundaries of federal power, in a way that the courts have not done in nearly a century.
I generally leave the sophisticated constitutional analysis to Jeff Rosen, my (much) more informed colleague. But you don't have to be a legal expert to spot three key questions before the Court, each of which could lead the justices to establish new constitutional doctrine:
What are the limits of the federal government’s power to regulate interstate commerce? Defenders of the law claim that the individual mandate, which requires most non-poor people to obtain insurance or pay a penalty, falls within its power to regulate commerce among the states. A long line of precedents suggests the defenders of the law are right.
Ever since the New Deal, the Court has held that federal power here is very broad. If it’s a legitimately federal matter, as the health care economy certainly seems to be, then the government has virtually unlimited authority to regulate it. A majority of the justices may disagree. But, if so, they’ll need to break new ground – that is, they’ll have to establish a limit on the commerce power that does not now exist.
For example, critics of the law suggest that the commerce power does not extend to regulating “inactivity,” which is their term for declining to obtain insurance for future medical expenses. A majority of justices could decide to adopt that reasoning. But, if they do, the justices will be drawing a distinction that the court has never recognized before.
Judge Laurence Silberman, the highly respected conservative who sits on the D.C. Circuit, made this point in his opinion upholding the law:
No Supreme Court case has ever held or implied that Congress’s Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce. ... To be sure, a number of the Supreme Court’s Commerce Clause cases have used the word “activity” to describe behavior that was either regarded as within or without Congress’s authority. But those cases did not purport to limit Congress to reach only existing activities. They were merely identifying the relevant conduct in a descriptive way, because the facts of those cases did not raise the question–presented here–of whether “inactivity” can also be regulated. In short, we do not believe these cases endorse the view that an existing activity is some kind of touchstone or a necessary precursor to Commerce Clause regulation.
Silberman went on to note that the “right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins.” Do five justices of the Supreme Court disagree? And, if so, are they suggesting the constitution doesn't authorize national solutions to what are clearly national problems? It's possible, as Jeffrey Toobin warns in the New Yorker:
In order to strike down health-care reform, the new Republican Justices would have to change the underlying constitutional law, which they have proved themselves more than capable of doing. They have already cut a swath through the Court’s precedents on such issues as race, abortion, and campaign finance, and it’s possible that they will assemble the votes to do the same on the scope of the Commerce Clause.
What are the limits of the “necessary and proper” clause? The commerce clause isn’t the only place in the constitution the government claims to find authority for the mandate. It also cites the “necessary and proper” clause. Specifically, the government claims that the mandate is “necessary” for carrying out its plan to regulate the price of health insurance (a goal even the law’s critics recognize is, by itself, legitimate) and a “proper” means for doing so.
Here, too, the government has the power of precedent on its side. Chief Justice John Marshall famously established this idea in McCullough v. Maryland, which is to federal power what flour is to cake. Through the years, the court has largely stood by this broad interpretation, most recently in 2010 in Comstock v. United States. In that case, Chief Justice John Roberts was part of a five-member majority that ruled the federal government could take action “rationally related” and “reasonably adapted” to one of its explicit constitutional duties.
The individual mandate would seem to meet those two criteria rather easily. Insurance mandates are certainly common for more voluntary activities, like driving a car or living in a flood plain. And, by enacting the mandate, Congress was following the advice of non-partisan experts, including those at the Congressional Budget Office, who said that a mandate was essential to maximizing insurance coverage and reducing the price of insurance through a system of private health benefits.
Again, the Supreme Court could disagree. The justices can say whatever they want to say. But to do so honestly they’d need to revisit Comstock and, at least implicitly, McCollough. And Justice Antonin Scalia, in particular, would have to find some way to explain away his concurring opinion in Gonzales v. Raich, in which he stated "Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce" and when a failure to take such action might "undercut" legitimate regulations. This is precisely the argument that the administration and its allies make about the mandate: That, without it, regulations of the insurance industry won't work as well.
Without a broad reading of the necessary and proper clause, lawyers for libertarians can start asking other questions – and, potentially, undermining other federal programs most of us take for granted. "If you accept [this] logic," Northwestern law professor Andrew Koppelman wrote recently, "then it is not clear how, say, the Environmental Protection Agency could survive, since there is no enumerated power to keep the country’s air breathable or its water drinkable."
Ironically, some conservatives might also come to rue such a decision. After all, if it’s unconstitutional to compel contributions towards private health insurance, then surely it’s unconstitutional to compel contributions toward private investment accounts – which happens to be the idea many conservatives still have for replacing Social Security. As Simon Lazarus, counsel for the National Senior Citizens Law Center, noted last year in Slate, two of the conservative appellate judges who rejected these lawsuits cited that very possibility in their rulings.
Is Medicaid coercive to the states? This is the sleeper issue of the case. Medicaid is the joint federal-state insurance program for low-income people. The states run the program, but they do so under guidelines set by the federal government, which provides a large portion of the funding.
The Affordable Care Act expands Medicaid eligibility guidelines significantly, so that, starting in 2014, anybody with income below 133 percent of the poverty line can receive it. The result will be approximately 15 million more people with Medicaid coverage, according to projections from the CBO. The federal government is picking up the vast majority of this cost, at least for the first few years, but states would have to provide the rest and many don't want to do so.
In theory, the states have a choice: They can always drop out of Medicaid altogether, since no law compels them to participate. But, in the lawsuit, states are saying the government is actually coercing them – in effect, making the states an offer they can’t refuse. As their argument goes, states have become so dependent on Medicaid funding for their low-income populations that the prospect of giving up that money is unthinkable, giving the federal government a nearly free hand to shape the program.
Again, precedent is on the federal government’s side here: Past court decisions have established that federal funding is basically a “gift” to the states, one for which the federal government is free to set the terms. The justices could use this case to change that understanding, but if they do they’ll be establishing a principle that could undermine a lot of existing programs.
Samuel Bagnestos, a professor at the University of Michigan, wrote an amicus brief on behalf consumer advocates including the Children’s Defense Fund and American Association of People With Disabilities. Via e-mail, he summarized the import of a ruling that the Medicaid is unconstitutional:
If the Court holds that the ACA's Medicaid expansion is unconstitutional, such a holding could put any number of cooperative state-federal programs at constitutional risk. The most obviously vulnerable would be Medicaid itself -- even as it existed before the ACA's amendments to it. If the petitioners are right that the large amount of federal money at stake coerces states into accepting new Medicaid conditions by leaving them with no realistic choice but to accept them, then it is hard to explain why the same large amount of federal money does not coerce states into continuing to accept the conditions that have long applied to Medicaid funding. The many federal statutes that impose conditions on federal aid to education would also be at severe constitutional risk, because those conditions are attached to large amounts of federal funding that states may feel they cannot realistically turn down. These statutes include Title I of the Elementary and Secondary Education Act -- the most recent reauthorization of which was the No Child Left Behind Act -- and Title IX of the Education Amendments of 1972.
Of course, it’s possible the court will duck these big questions altogether. It could still decide to rule that the lawsuit is premature, because the law has not taken effect yet. It could decide that the individual mandate is a legitimate exercise of congressional authority to levy taxes – an argument I have always supported but even some more liberal judges have eyed skeptically – and leave it at that. Or it could issue a broad ruling accepting the government’s case that the law falls clearly within established precedents, just as Silberman and another conservative appellate judge, Jeffrey Sutton, have.
If that happens, historians will probably come to see these cases much as the legal establishment did until very recently: As a weak bid by conservatives to overturn legally what they could not block politically. But there’s no way to know until the justices make their decision.
Update: I'll be writing about the case extensively in this space over the next two weeks. But my overall argument hasn't changed since last January, when I wrote a lengthy article on the legal issues in play. Also, I originally wrote that nobody cites Bush v. Gore, but an alert reader (via twitter) has informed me otherwise. I changed that reference, as well as adding a quote from Toobin's terrific New Yorker piece, which is well worth reading.
Finally, Ann Althouse takes issue with my item because, she says, Bush would have won the presidency even if the Supreme Court had not intervened. "Ridiculous!" she says of my item. Althouse is absolutely correct that my statement went too far. Media recounts including only the "under-votes" showed that Bush would still have won and, at the outset, that's what Florida was doing. But Althouse is wrong to suggest the outcome was inevitable. Among other things, the judge overseeing the recount later told the Orlando Sentinel that he might have included "overvotes," as well. Media recounts including those ballots left Gore with more votes. (See this vintage Mickey Kaus blog item for more.) In short, there's no way to be sure. I have changed my wording above, to make clear the outcome was uncertain. Of course, that only strengthens the argument that the health care cases will prove more important if the court ends up finding the Affordable Care Act unconstitutional.
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56 comments
More intelligent and informed people will post more profound and insightful comments than I can here, But as I am first to muddy the ground. I will point out how absurd and ridiculous I find it that members of the "religious right," prate endlessly about "right to life." I live (in the U.S.) not far from Victoria, Canada; a tourist/retirement town often satirized as a haven for the "newly wed and nearly dead." I haven't quite got the right rhyming bon mot, but there should be something about how the Christian right believes in the "right to life" of the not yet born and the just about dead, but not for the rest of us somewhere in between.
- skahn
March 19, 2012 at 12:32am
Unfortunately I think this will come down to a 5-4 split decision by the judges on political lines. The key in all of this being Justice Kennedy. Although I do not think that the court will overturn the law. The irony of all of this is that if we had true universal health care in the form of a single payer system you would not have these sort of legal challenges.
- chrisv410
March 19, 2012 at 12:55am
Those who oppose ACA strongly certainly aren't utilitarians. They aren't interested in the greatest good for the greatest number, only what's good for their isolated little selves. Sad creatures, they. Will they come running to cash in on the benefits of ACA, when they need them? You betcha, but they won't let anybody know about it. Weasels, I'd call them. Sometimes human nature disgusts me. But sometimes it elates me, too. I'm sure most of these weasels help others in their lives. The question is, are those they help other weasels? Most likely, some of them are not. Case of the Century? I think the Case of the 21st Century will be about interactive brain chips and whether individuals can be forced to incorporate them in their "personal systems." That subject will get libertarians orbiting the earth with rage--until they find a way to secretly exploit the brain chips for personal gain. Then they'll be right down here with the rest of us. Jonathan is right. The upcoming ACA case probably won't settle anything definitively. But it'll be kind of fun, if Obama and the American people win. No, it'll be BIG fun.
- magboy47.
March 19, 2012 at 2:34am
Call me cynical, but just as Bush v Gore was a fundamentally political decision so will this one. Unless the justices choose to postpone the decision entirely, they will make it in order to pursue a political agenda. The ray of hope, though, is that they may recognize that an anti-ACA ruling may galvanize enough voters to assure Obama's re-election.
- Thunderroad
March 19, 2012 at 4:33am
If the Court overturns it, Obama will most certainly lose. The vast majority of Americans probably don't even know this case is on trial, and probably don't know about the benefits of the ACA. Medicare recipients do, but didn't the vast majority of them go Tea Party in 2010? What I'm trying to say that if libertarian lawyers win this, then they will have achieved a striking blow to the federal govt and may change a lot more than just this law. That is a lot of momentum, and there would be a huge swing election toward conservatives.
- RedState
March 19, 2012 at 8:01am
I expect Roberts to do a Marshall, upholding the mandate but adopting a narrow view of the commerce clause. Obama gets his "victory", but conservatives win in the long run by severely restricting the Obama administration's ability to effectively implement ACA (and Dodd-Frank, etc.).
- rayward
March 19, 2012 at 8:23am
Magboy appropriately said, “I think the Case of the 21st Century will be about interactive brain chips and whether individuals can be forced to incorporate them in their "personal systems." MB, you have a good case there. I am still inclined to argue (despite several puts into my place) that human beings are now becoming mostly obsolete as far as employment goes. This morning, I read on MSN (and not sure whether chosen by a human being or an AI (a rogue AI turning on its “fellows”?): http://money.msn.com/investing/12-machines-that-want-your-job
- skahn
March 19, 2012 at 9:28am
personally I think they will punt as no one has standing to claim a harm that does not yet exist. It would be the savvy thing to do, if Romney wins he will gut the ACA and the court won't have to sully itself with the issue, if Obama wins then the court could take a look at it but it won't be for 2 years and who knows what can happen. Obama is one conservative retirement away from a majority. I have one question though, if the court only strikes down the mandate but nothing else in the long run this will be a victory for Democrats as insurance companies will raise holy hell that they have to now accept all comers but watch as millions of young opt out until they need insurance, and they won't blame Democrats for this. I foresee Republicans enacting a variation of the mandate (a tax and credit plan) which would do the exact same thing as the mandate, which would bring in 30 million premium payers many of them young and healthy. The Democrats do deserve a lot of blame for this though and so does Cohn. A tax and credit plan is 100% legal (think mortgage interest deduction) but Cohn had to push for the mandate and if the court strikes the whole bill down, it will be Cohn as much as anyone who deserves the blame. And why did they not do a severability clause is beyond me. Again, if the court strikes the whole bill down then Democrats should be hung out to dry for being so damn stupid.
- blackton
March 19, 2012 at 9:35am
@Blackie "personally I think they will punt as no one has standing to claim a harm that does not yet exist" I'm not a lawyer, and this question is genuine and not snarky: If a local legislature voted to deprive, say, black people of the right to vote but also voted that the law wouldn't take effect for another 5 years, wouldn't it still be overturned as unconstitutional long before it had any demonstrable ill-effect? Ok, so maybe that's an absurd analogy, but I really am curious. Does Supreme Court oversight demand that one party be able to claim harm?
- Tristan
March 19, 2012 at 10:26am
If the court rules in favor of the government, it will *probably* be a 5-4 decision. However, I would not be surprised if it were 6-3 or even 7-2. You can consider Thomas a lost cause. However, Scalia, Roberts and Alito are possibilities. Remember, the insurance companies stand to *gain* under the ACA. The attack on Obamacare is almost purely political. The justices may choose to side with business interests rather than the lunatic fringe.
- timteeter
March 19, 2012 at 10:27am
Grateful as I am to read more of the potential policy impacts of the court case, I think that the political implications are paramount, both in the long term and short term, and that the Supreme Court is very, very well aware of this. The case has only three possible outcomes: -They uphold the ACA, enraging conservatives everywhere. -The court's conservative justices go batshit insane with ideological fervor, ignore all constitutional precedent and common sense, and overturn the ACA, dealing a final deathblow to the court's credability. -They realize they've been backed into a corner and, as blackton suggests above, rule that nobody has standing, leaving it up to the voters in November. If the court overturns the ACA, I think that Scalia & company have enough foresight to see what the three realistic outcomes of that would be: -Bolstered by the court's backing, conservative voters carry the Republican nominee to victory in November. -Pissed-off Democrats carry Obama to reelection in November, and the court, its biases and lack of objectivity now on complete display, finds itself shut out of governing & policy decisions as the Executive takes every step legally possible to resolve issues without resorting to the courts. -With the country enraged by the court's obvious shilling for conservative ideology, Obama campaigns against the Supreme Court as well as the Republican nominee, winning in November with strong majorities in both houses of Congress and a mandate to fix health care permanently, maybe with single-payer this time, and follow that up by fundamentally restructuring the court itself. Two out of three of the case outcomes leave the ACA standing; to kill the ACA, the conservative Supremes have to put the future of the court on the line, and in two out of three of the outcomes that would create, the court finds itself irrelevant or irreparably changed. I think the Justices, even the conservative ones, think of the long term enough to know that going all in on one single case and one single election is a very bad idea.
- janus
March 19, 2012 at 10:38am
Tristan - Re: requiring harm for the Supreme Court to hear the case, yes, it is my understanding that in the scenario you describe, the law could not be struck down by the Supreme Court until it came into effect. I'm no lawyer, either, but your question reminded me of when I listened to Wallace v. Jaffree, a 1985 Supreme Court case on prayer in schools. A portion of the history of the case involved the particular strategizing involved in who the case was on behalf of. The family had two kids in second grade and one in kindergarten, and the case took long enough winding through the courts that the older kids graduated. Thereafter, the parents had to adjust the case to be on behalf of their youngest child, or (it was acknowledged explicitly in the C-SPAN case history I was listening to) the Supremes would have dismissed the case as moot, as the older children were out of school and thus no longer being harmed. Apparently even prior harm doesn't work for striking down laws, but you have to have someone who is being actively harmed by the law right now. It's arcane as hell, but it's apparently a key part of how jurisdiction works for the Supremes. (And don't even ask me how it's different from civil cases, whose entire purpose is obviously to redress prior harm. I know that's seemingly contradictory, and yet...) http://en.wikipedia.org/wiki/Wallace_v._Jaffree
- janus
March 19, 2012 at 10:52am
Tristan, Your example about a state or local legislature prohibiting blacks from voting is not apposite (as we lawyers like to say), as that sort of thing could be enjoined by a Federal court even before it is implemented on various grounds -- among other things, it is a violation of Section 1983 of the Civil Rights Act as an express action by a local legislature to strip away fundamental civil from a protected class of citizens. There are also problems with that sort of statue under the Voting Rights Act. Suffice it to say, a Federal court could issue an injunction against such a statute today even if was not intended to be implemented five years from now. The right to be free from Federal requirements to purchase private insurance is fundamentally different from the right of blacks, Hispanics, women or Jews -- or gays -- to be free of invidious discrimination under state or local law. In any case, no one is asserting that the individual mandate is discriminatory, as it is supposed to apply to everyone who does not already have employer-provided coverage, outside a narrow range of exemptions based on religious faith (Christian Scientists and similar sects that oppose medical care on religious grounds). Rather, the claim is that such a requirement exceeds Congress's powers under the Interstate Commerce Clause. Similar claims have been brought against Federal criminal statutes involving violence against women, gun possession near schools, criminalization of medical marijuana, statutes prohibiting loan sharking or racially discriminatory practices of purely private businesses, such as hotels and restaurants. In these sorts of cases, the issue of "standing" is important -- if a statute which is arguably based on Congress exceeding its legitimate authority is not set to be implemented for several years, there is a legitimate argument as to whether anyone is harmed by that statute until they are actually forced to participate in the activity that they oppose. That's why much of the smart money in the legal community is on John Roberts and the rest of the Court's pragmatic conservatives -- Alito, Kennedy and Scalia (yes, Scalia is pragmatic, unlike Thomas) -- joining their liberal brethren to throw out at least the individual mandate claim on the basis of standing and defer its challenge until someone is actually forced by the law to buy insurance against his or her will in 2014. The real struggle, in fact, may be for Roberts to keep the liberals and three conservatives on board to do this, instead of allowing a fissure in conservative ranks whereby the liberals (and maybe Kennedy) vote to uphold the mandate, Roberts, Scalia and Alito (and maybe Kennedy) vote to table the issue on the basis of standing and Thomas (and maybe Kennedy) vote to strike down the mandate -- resulting in a plurality of Justices upholding the requirement.
- wildboy
March 19, 2012 at 11:20am
Thanks Janus/Wildboy
- Tristan
March 19, 2012 at 11:29am
Good point made here: insurance companies want the many millions of young, relatively healthy consumers whom they would acquire under ACA. They are secretly lobbying for it to remain in place. It would certainly swing the actuary tables in their favor.
- magboy47.
March 19, 2012 at 11:54am
Blackton what notional wager do you care to stake for these two propositions for which I vote in the affirmative? 1. I say SCOTUS won't punt. 2. I say it will be a 5 - 4 vote ruling against the mandates and the application of the necessary and proper clause, falling along political lines with Kennedy siding with the R wing of the court. I'll come down to Whahaka in late July to collect. It's right on the road to Xanadu.
- basman
March 19, 2012 at 1:08pm
I'm fearing a political decision, on narrow grounds so as to not be quite as embarrassing in contemporary discussion and in the history books. The opportunity to frustrate the Democrats as a group, and Obama in particular, will just be too tempting for Roberts et al to pass up. (Remember Obama calling out the Court on the pathetic Citizens United decision at last year's State of the Union; paybacks are hell.) Hoping I'm wrong.
- floydsm8
March 19, 2012 at 1:10pm
Thanks Janus/Wildboy too. Basman, I just can't see 5-4, at most it will be 6-3 but I am seeing more 7-2 or even 8-1 with only Kennedy and Thomas voting it down, or Thomas alone.
- blackton
March 19, 2012 at 1:44pm
But Bush v. Gore didn’t change constitutional doctrine. It did for me. The judiciary can be distinguished from legislators in a number of ways. A legislator can benefit from his vote and a judge cannot. A judge is obedient to precedent and must provide a reason for deviating from it. A legislator has no obligation to follow a prior law in any way whatsoever. When the Supreme Courtmade its decision "limited to the present circumstances" it usurped the prerogative of the legislators to make non binding precedent.
- Nusholtz
March 19, 2012 at 2:23pm
The Constitution says...we are governed by the consent of the people...that is, we elect people who vote and pass laws that we live by. So - if we pass (our legislators) pass a law ,i.e health care...is it constitutional because we are governed by the consent of the people. Where does the right of 5 non-elected people to decide this come from?
- acechar
March 19, 2012 at 3:16pm
acechar - all due respect, but you might want to open a Civics 101 book. Was that a serious question?
- Tristan
March 19, 2012 at 3:33pm
Mr. Cohn has one thing correct - the aforementioned case before the Supreme Court will determine whether there remains any limit whatsoever on federal power and reach. Mr Cohn echoes the state's portrayal of the individual insurance mandate as commonplace exercise of an enumerated federal power. Nothing could be further from the truth. There is absolutely no constitutional basis to justify such an unprecedented seizure of authority by the sate. There is nothing in the history of Constitution or the Commerce Clause that empowers the state to compel an individual to purchase specific goods and services simply because that individual is living. The ACA mandate is a patent offense on individual rights and there would be few remaining limits to the reach of the all powerful state if the ACA is upheld. I ask the proponents of the ACA, if the federal government can order all individuals in all states to purchase a specific product, then what limits remain? Can the government require that we purchase an exercise bike or gym membership to help with the national obesity problem? Can government compel us to buy American cars to support the economy? What about solar panels to alleviate the environmental crisis? If government power to "regulate commerce" implies pretty much unlimited scope as Mr. Cohn asserts, what is left that the government cannot do in this realm? Finally, the gross hyperbole that the individual mandate is a type of tax is completely false. First, during national debates on the ALA, Obama never described the mandate as a type of "tax". In fact, he made claims to the contrary. Furthermore, the Congressional Budget Office never accounted for the individual mandate as taxes. Legally, until this legislation, penalty provisions have never been positioned as a tax and fails to satisfy every test for a tax permitted by the Constitution under the Apportionment Clause (as wells as the taxing power of Article I, Section 8 and the 16th Amendment). There should be no mistake here, the individual mandate is entirely novel and seeks to permanently tip the scales of power in favor of government at the expense of individual liberties.
- Nicomachus
March 19, 2012 at 3:35pm
¨There is absolutely no constitutional basis to justify such an unprecedented seizure of authority by the state.¨ Hyperbole alert. Unprecedented? Good lord, pick up a history book sometime. And your analogy is utter bullshit. Hospitals are compelled by law to take in people regardless of ability to pay, this cost is passed onto all of us who have insurance and to the tax payers. No exercise maker is compelled by law to give fat people bikes to exercise. Now Nicomachus, are you in favor of allowing hospitals to allow er patients to die on their doorstep until they can prove they can pay? If yes you are consistent, an evil bastard but a consistent one. If not, what mechanism would you use to curtail free riding? An individual liberty is not a liberty to steal from society, or do you imagine if you are uninsured you will never get sick or have an accident? Now I personally think the mandate was bad policy because of how difficult it is to enforce, how ineffective it is because the fine is not big enough, and because it brings out the selfish assholes who think they should get free healthcare and state it is a question of liberty and not a question of their being selfish assholes. I would rather there have been a tax and credit regime, but Nelson was a prick and Republicans were just total dicks so Obama had to compromise and go with a weak policy, however weak is not unconstitutional. Now I defy you to state that you should get free healthcare as a matter of right, otherwise stfu.
- blackton
March 19, 2012 at 4:16pm
Blackton, here's my superficial thinking: Citizens United taught me what an adventurist court this is on the right in pursuit of validating its own ideological presuppositions, seizing on an issue not before it as such and rewriting constitutionally campaign finance law in so radical a way. The mandate issue is so ideologically charged and the public dislke the idea of mandates so intense and the commerce clause so seen as a springboard for federal incursion as evident in the perception of the Obama administration and in its critique coming from the right, that I fear the worst, legal argument to the side. But for Citizens United, I wouldn't be this pessimistic.
- basman
March 19, 2012 at 4:43pm
@blanckton Do you have a rational argument with my position? Note that an angry tirade full of personal attacks does not constitute a rational argument.
- Nicomachus
March 19, 2012 at 5:23pm
There is little chance that the US Supreme Court will ignore the lengthy lower court decisions in this matter and merely dismiss all the proceedings on the grounds the issues are not "ripe" for constitutional review. If this is the outcome, kicking the can down the road will become a standard for doing business in Washington. The issues will then be litigated anew down the road. It's more likely that the US Supreme Court will determine that necessary facts are lacking and remand some or all of the issues to one or more district courts. While keeping the case alive for judicial review, the Congress can begin to modify the legislation. I agree that as a matter of general principle, the US Supreme Court should begin its examination of the Affordable Health Care Act with the presumption the law is constitutional. However, this is a guess.
- Doug12
March 19, 2012 at 5:44pm
Nicomachus Nobody is obligated to buy health insurance. They pay a tax if they do not. The internal Revenue Code is filled with discrepancies in tax based on conduct. Under the Internal Revenue Code, someone who rents gets less deductions than someone who buys a home. Someone with kids pays less tax than someone without kids regardless of his ability to pay more. Someone with capital gains income pays less tax than a coal miner who gets a lung disease regardless of the former's income. Should the Supreme Court throw out the ACA because it compels the purchase of a private item or pay a tax, we can make similar arguments about all of the tax laws.
- Nusholtz
March 19, 2012 at 5:56pm
Nicomachus, the short answer to your question (without going into too much nuance) is yes, the Federal government can compel individuals to purchase private products so long as the purchase, in the judgment of Congress, has a substantial effect on interstate commerce in the United States. However, the way to limit this sort of tyranny is to elect Senators and Congressmen who won't vote to impose such mandates and vote to repeal them if they are in effect. The practical or philosophical dispute over the proper size and role of the Federal government's ability to regulate commerce -- as opposed to, say, the ability of the Federal or state governments to invidiously discriminate against certain groups of people who cannot otherwise defend themselves through the normal political process -- is to be resolved wholly within the political sphere, without the interference of unelected Federal judges.
- wildboy
March 19, 2012 at 6:34pm
I hate to point out the obvious, but if you can clear the bar set by the constitution then never mind the exercise bike because they could mandate you buy plots of land in hell and build houses (adopting, siring or birthing hell spawn would be optional behavior, but worth a signficant amount of EITC). If you don't like the law, you can certainly petition your congress-critter to propose changes, but there you have it.
And when are you people going to start using a better example than an exercise bike? That meme was tired before it got started.
- GSpinks
March 19, 2012 at 6:34pm
"Note that an angry tirade full of personal attacks does not constitute a rational argument." Wow, such a stunning rebuttal I know not what to say except the first recourse of someone who can not answer a basic question is to whine that his or her feelings are hurt. Obviously you live in some kind of bubble where your views are never challenged because, frankly, they are lame. Again, try to focus and answer this question: Now Nicomachus, are you in favor of allowing hospitals to allow er patients to die on their doorstep until they can prove they can pay? If not how would you address the issue of free riders? Since you were not able to answer that question before because of your oh so delicate feelings I will now say pretty please.
- blackton
March 19, 2012 at 6:49pm
GSpinks:And when are you people going to start using a better example than an exercise bike? That meme was tired before it got started. Don´t you understand it is pretty much all they got? That and hyperbole "the mandate is unprecedented" even worse than Plessy or Dred Scott (obviously because those just hurt the...you know...) The thing I like about the TNR firewall is because I can come here and not worry about climbing a mountain of stupidity (Mr. Rat excepted) so I do get easily aggravated when I come across juvenalia more suitable to Redstate or the Huffingtonpost. And this was a generally very good thread. Janus/Wildboy had great, informative contributions.
- blackton
March 19, 2012 at 7:10pm
Tossup between my dear Basman and Doug12. I apologize for profound my cynicism towards the present make-up of this great institution. I'm of the mind that none of this will ever be on the up and up, this court is hopelessly corrupted after Bush v Gore. Unfortunately, it would take a miracle to convince me that in my lifetime it should ever be trusted again. It would do a great service to the strength of our democracy if Clarence Thomas had the decency, maturity and patriotism to recuse himself, which he clearly does not. I hold no hope that anything resembling fair jurisprudence will prevail here. I hope I am wrong, cynicism is not preferred state by any stretch.
- WandreyCer
March 19, 2012 at 7:12pm
Fit words for upcoming case: ...But even among those hard cases, there is a subset that stands out. In late 2005, Barack Obama, then a freshman senator, placed those extraordinary cases at the center of his opposition to John Roberts’s nomination for chief justice: ...What matters on the Supreme Court is those 5 percent of cases that are truly difficult. . . . [T]he constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances . . . the critical ingredient is supplied by what is in the judge’s heart....
- basman
March 19, 2012 at 7:43pm
From an essay by Adam White: (as somewhat paraphrased by me) ...The opposing states point to no Supreme Court precedent striking down a similar federal mandate, but that, it's argued, is only because Congress never enacted such a mandate. It's argued to be unprecedented, and the states try to turn that to their favor and argue: ...Congress itself appreciated the distinction between the power to regulate commerce and the power to compel individuals to enter into commerce for the first 220 years of its existence. The federal code books are replete with provisions regulating the conduct of individuals who engage in commercial transactions, as well as provisions encouraging, enticing, and incentivizing individuals to enter into commercial transactions of all stripes Neither the federal government nor the numerous lower courts, the states conclude, “have identified a single other federal law throughout our Nation’s entire history that simply compels individuals to enter into commerce.” ... That dearth of precedents is all the more instructive, they argue, because “Congress surely has not lacked incentives to exercise such a ‘highly attractive power.’ ” In two centuries, Congress never lacked the creativity to fashion indirect ways to achieve its preferred ends—think of the perennial threat to withhold highway funds as a way to cajole the states into forcing drivers to wear seatbelts—but it never claimed for itself the power to achieve its economic aims through direct commands to the citizenry at large...
- basman
March 19, 2012 at 7:57pm
basman, to be alive is to be subject to the wants and vicissitudes of life full of injuries and disease. It is well nigh impossible to claim that you will never be. By our nature we are compelled to enter the health care market and the health care market is compelled to treat us regardless of our ability to pay. There is no such other market. Grocery stores are not compelled to give free food to the starving, a starving person would be treated in a hospital (if they were truly starving) and have their needs attended to. But government already steps in with food stamps to ensure no one need starve. If Republicans would be willing to give health care vouchers to everyone paid for by taxes I would not object, but as this is single payer that will not happen. Right now taxpayers are on the hook for the 60 million uninsured, some of whom can purchase insurance but do not. So life compels people to enter the healthcare market, the government is just setting the conditions upon the manner in which people enter it. Or we can allow the uninsured to die if they can not prove ability to pay in full.
- blackton
March 19, 2012 at 8:28pm
and how the hell is a mandate to buy insurance legal on the state level in Mass. but at a federal level becomes tyranny? Strange how the mandate in Mass. was promoted by Republicans and the front runner in the Republican party, but if a Democrat does it it suddenly is akin to tyranny.
- blackton
March 19, 2012 at 8:32pm
@Nusholtz Liberals can’t seem to make up their mind whether the individual mandate is a function of the federal government’s role in regulating interstate commerce or in fact a “tax”, which would be covered under an entirely different legal principle. One starts to get the feeling that they are not really concerned with constitutional rights, but rather on imposing their policies. As I stated previously, the penalty associated with the individual mandate does not pass the constitutionality test for a tax. First of all, nowhere in the legislation did congress refer to the penalty as a “tax”. It fails as an extension of the income tax because the individual realizes no gain when electing not to purchase insurance. It most closely resembles a direct tax. If it was the intention of Congress to impose a new direct tax, they they utterly failed to implement most of the common legal mechanism for creation of a new direct tax. During the debate over health care reform, the Obama administration consistently denied that a statutory penalty for failing to purchase a government-approved health insurance policy would constitute a “tax.” Only after the constitutionality of the individual mandate was placed into serious doubt did the Obama administration completely reversed their position and declared it to be in fact a “tax”. Had liberals really wished to impose a new tax in an honest manner, they should have written that into the legislation and had an open debate on its merits. Of course neither was ever their intent. A final thought, if the mandate was indeed a tax, it would imply that Obama broke yet another promise and imposed new taxes on the middle class. This has little bearing on whether the mandate is a tax or not, but it does point out the profound intellectual dishonesty that permeates the Obama administration.
- Nicomachus
March 19, 2012 at 8:50pm
I am jumping directly to this comment without yet reading the others, so I apologize if it is unresponsive to the thread. The "regulating inactivity" argument is a canard. The activity being regulated is the consumption of medical services, in which virtually everyone has and will participate. Dhurtado
- NR143296
March 19, 2012 at 9:38pm
Nicomachus"the penalty associated with the individual mandate does not pass the constitutionality test for a tax. " The constitution does not limit and never has limited the power to tax to not include something you might call a penalty and it makes no difference on the issue of constitutionality how it is referred to by the legislature in enacting it. If that were so, court decisions would be unnecessary by the mere rendering of an appropriate sentence in a committee report. In regard to whether President Obama promised or did not promise to raise taxes, that has no relevance to the question of constitutionality either.
- Nusholtz
March 19, 2012 at 9:41pm
blanckton, you wrote "Now Nicomachus, are you in favor of allowing hospitals to allow patients to die on their doorstep until they can prove they can pay? If not how would you address the issue of free riders?" First, you presented a false dichotomy. You imply that it is either Obamacare OR we must allow impoverished patients in need of medical attention to perish or at the very least suffer "free riders". I will try to enumerate the various fallacies in your line of thought. First, you seem to have completely missed the point that Obamacare involves free riding. The indigent who required others to foot his medical bills continues to do so. The tax payers, insurance customers, hospitals, charities, etc. continue to pay while these individuals "ride free". Those who have means beyond poverty, but not quite enough to cover the medical costs ride only part of the way as largely happens today. Obamacare has not created a net healthcare benefit, but rather simply reshuffled the burden. Thus, your fears of free riding are entirely unaddressed by Obamacare. Second, you ask (I paraphrase a bit less dramatically) what should be done with patience that cannot "prove they can pay"? I will start with premise that no one in significant need should be denied basic medical care. If the patient is poor, then they are covered under medicaid and other forms of charity (which of course predates Obamacare). However, if the patient has means, then they should be held responsible for the associated costs. Those in between the two categories are partially subsidized. Finally, even if your points were entirely valid (in some alternate plane of reality), this would still not justify the trampling of individual liberties. Apologists of totalitarianism frequently point to the various socioeconomic problems solved by throwing individual rights out the window. In my opinion, a society that fails to respect and value highly individual rights is not one worth living in.
- Nicomachus
March 19, 2012 at 9:56pm
I noticed how nicomachus again completely disregarded my direct question. Yep, when you can not rebut a question completely ignore it and bring up another point. To whine But Obama said he was against a mandate but still enacted it is to have zero understanding of how government works, as though the legislative process is absolutely pristine and Obama should have let the whole bill sink because the Democrats were held hostage by DINOs and Joe Lieberman. Without the mandate other reforms–namely prohibitions on denying health insurance coverage to individuals with pre-existing medical conditions (the “guaranteed issue requirement”) or using an individual’s medical history to justify higher insurance premiums (the “community rating requirement”)–would increase average premiums, exacerbate adverse selection problems, and discourage individuals from obtaining coverage until they were sick. Congress found that those who do not purchase health insurance, and instead self-insure, almost inevitably take health care services they cannot afford. Hospitals, by virtue of federal law and professional obligation, provide these services, and as a result, $43 billion in annual costs are shifted to the insured, through higher premiums. That, in turn, makes health insurance less affordable and increases the total number of uninsured. Therefore, it is argued that Congress rationally concluded that decisions about how to pay for health care, in the aggregate, substantially affect interstate commerce. The Government contends, moreover, that the individual mandate can be upheld as an essential element of the Affordable Care Act’s broader reforms, like the guaranteed issue and community rating requirements, which all agree are within Congress’s power. That is because Congress found that absent the mandate, the guaranteed issue and community rating requirements would lead individuals to wait to buy insurance until they needed care, causing higher premiums, again reducing the number of insured, and destroying the efficacy of Congress’s regulatory scheme. I know this is a repeat of what I wrote above but as it comes directly from the opinion I just wanted to show little nicky that just because he ignores these questions does not mean the Court will. Anyway, Wickard v. Filburn, 317 U.S. 111 (1942) regulated inactivity, so it is not like there is no precedent to this *unprecedented* action. But I guess for some unprecedented means not reading the courts opinion and blathering on like a tool.
- blackton
March 19, 2012 at 10:20pm
@Nusholtz I think you are probably wrong that the courts will not take into account the formalities regarding how the law was represented in text and the apparent intentions of the lawmakers. However, whether this will be sufficient to counter the "tax" argument remains to be seen. The bill itself testifies to the intentions of Congress, which anticipated a constitutional challenge to the individual mandate. The law text includes 10 detailed findings meant to show that the mandate regulates commercial activity important to the nation’s economy. Nowhere does Congress cite its taxing power as a source of authority. However, since you are making a legal argument vs an ideological one, then the discussion must be at that technical level. The Tax Foundation has presented an in depth legal argument as to why the Individual Mandate is a penalty and not a tax: http://www.taxfoundation.org/news/show/27970.html Finally, numerous lower courts have rejected the government's argument that the penalty represents a tax. However, I admit it is entirely possible that the government may win in the Supreme Court by a 5-4 technicality.
- Nicomachus
March 19, 2012 at 10:28pm
@blanckton LOL
- Nicomachus
March 19, 2012 at 10:33pm
nic, did you even come close to reading the opinion. as I wrote above 43 billion is not nothing. And you simply have no understanding of reality (as opposed to your la la land libertarianism) ER health care is far more expensive than a regular visit to a doctor. That you do not know this shows a willful obtuseness on your part. UHC is an overwhelming societal good, Japan pays 8% of its GDP and has better outcomes, the US pays twice the amount, and Japan has UHC. So much for tyranny. Here is your quote: I will start with premise that no one in significant need should be denied basic medical care. If the patient is poor, then they are covered under medicaid and other forms of charity (which of course predates Obamacare) To which I say, wow. So you are in favor of Medicaid for the poor which is financed by your taxes but are in favor of true free riders (the idea that,for example, a homeless vet suffering from mental problems in need of healthcare is a free rider is simply obscene) Free rider refers to those that can afford to buy insurance yet who do not and when in need of health care use it often stiffing the taxpayers (collection agencies are not unlimited in their power, especially to go after the young). Bankruptcy due to medical bills is the number one reason for bankruptcies at more than 60% of the total (yeah, I know facts in my alternate reality are a bitch, ain't they?) I am sure you view school children attending free school is a form of free riding as well by your definition. Your definition is nuts. Universal health care, as well as universal schooling, is a societal good. A healthy society is a productive one. In China there is no real medical insurance industry, this is why Chinese save so much of their income to ward off disaster because hospitals will not treat you if you can not pay. I have personally seen a preemie baby die because she was a girl and the father did not want to pay for the care and the hospital would not either. For you, that is a utopia I guess (where was your charity for that baby? oh, right it is only for Americans...except that nearly 45,000 Americans die yearly from lack of health insurance. Oh, wait, is my fact from this alternate reality blowing a hole in your massive bubble of ignorance?
- blackton
March 19, 2012 at 10:40pm
@wildboy in my opinion that is entirely the wrong approach. The safeguarding of individual liberties should not be left to the caprices of the political system - whether it is dictatorship, monarchy, theocracy, democratic socialism, or whatever mode of government is in fashion. Individual rights must be constitutionally guaranteed and unalienable. Otherwise, our rights are not rights, but privileges bestowed by the state.
- Nicomachus
March 19, 2012 at 10:47pm
nic: Finally, even if your points were entirely valid (in some alternate plane of reality), this would still not justify the trampling of individual liberties. Apologists of totalittarianism And here nic completely jumps the shark. I have seen totalitarianism up close and personal, only a true moron would equate what it universally considered as legal on a state level in Mass. somehow is the first step to North Korea when enacted at a Federal level. I mean, wow. Get out and travel a little. It is this complete obliviousness to what real totalitarianism is that is so frightening. I mean, Jesus, you can state you are opposed to it because you think the mandate is unconstitutional, and that is fine, but unconstitutional does not mean totalitarian. This is just fruit loops argument. Why don't you say it is worse than the holocaust or slavery because it seems hyperbole is your default mode? If you read what I wrote way above I thought the mandate was a mistake myself, a tax and credit regime would have been far more effective, but if you view a tax and credit as legal (akin to a mortgage interest deduction) with it have the exact same material effects as a penalty (in fact it collects more by way of taxes and only a fool would not buy insurance in that case) than you have to understand on its face your rhetoric is ridiculous. The mandate can only apply to health care, that is the whole issue. There is no slippery slope. *In my opinion, a society that fails to respect and value highly individual rights is not one worth living in.* So I take it if the law is upheld I can expect to read an obituary of your suicide? No? Then why say such an effing stupid thing? You don't like it vote for Romney, don't threaten to kill yourself.
- blackton
March 19, 2012 at 10:54pm
@blackton I no longer wish to respond to your unintelligible tirades, but I would like to disavow one point since you touched on a sore spot. I am not now and have never been a libertarian.
- Nicomachus
March 19, 2012 at 10:56pm
here is another howler: The safeguarding of individual liberties should not be left to the caprices of the political system...ie government... Have you been pulling my leg? Who else but our system of government (you know, the whole of the people, by the people, and for the people) could safeguard the Constitution? Hell, the Constitution defines our government, it sets up a system by which the government and those in charge can do the whole *and will to the best of my ability, preserve, protect and defend the Constitution of the United States.* You are seriously deluded if you think that you safeguard the Constitution. Of course we live with the caprices of the political system. Do you know nothing of history? Are you aware we had a Civil war because the people within the government (and outside of it) failed the ideal of the Constitution? You seem to have this mythical view of the Constitution that it means what you think it means (and only you apparently) and that if not in accord with your view it will rise up and safeguard itself. As I said, I gotta believe this is satire or you really have been living in somekind of fox news bubble with the other Paulnuts.
- blackton
March 19, 2012 at 11:06pm
nic: I no longer wish to respond to your unintelligible tirades, but I would like to disavow one point since you touched on a sore spot. I am not now and have never been a libertarian. translation: holy shit I am getting the crap beat out of me so I had better say it is unintelligible (I am sorry, but are there any misplaced modifiers anywhere?) good lord, you take yourself way too seriously. If you can not stand criticism of lameass ideas, why come here? I readily admit I am obnoxious and you can call me it, but if you are so cowardly not to allow your ideas to withstand scrutiny because your itsy bitsy feewings are hurt then I am sure that there are websites that censor the hell out of everything but the most anodyne statements. Maybe you will be happier there where your views can not be challenged. I readily admit I have said stupid things here and when called out on it have admitted it freely. Hell, I made a whopper not long ago that upon further research realized my interpretation of data was fundamentally wrong. I appreciated being called out on it because that is how you learn. So take it for what it is worth, you are nowhere as erudite as you imagine yourself to be. As a University Professor I have to censor myself all day (not this year though since I am on sabbatical) I refuse to dumb down my comments for you. You can call me an ahole, I do not care, but you have not effectively refuted anything I have written which makes you amusing but kind of boring.
- blackton
March 19, 2012 at 11:20pm
@blackton LOL
- Nicomachus
March 20, 2012 at 12:34am
Nicomachus The argument cited by yourself, that a tax assessment for not having Health Care does not raise revenue, is simply amazing! The authors should be applauded for a truly exceptional feat of cognitive dissonance. By the way, the Internal Revenue Code is filled with penalties and not one has been struck down for being unconstitutional. As to whether the court will or will "not take into account the formalities regarding how the law was represented" is irrelevant, your argument was that it was not a tax because someone in the legislature had said so.
- Nusholtz
March 20, 2012 at 7:21am
nush, to be fair to the non mandate side, the language in the bill is explicit that it is to be treated as a penalty (and even limiting the manner in which the penalty could be created, rendering it almost toothless) and the penalty itself is based on not doing something, as opposed to doing something (which is what virtually every other penalty does, outside of public safety...ie not removing rat feces from food, not yielding, etc.) so I see room for the mandate to be struck down, which is why I railed against the penalty back in the day. Of course an argument can be made that allowing oneself to be a potential health hazard by not availing oneself of health care is against public safety, but people can, it is just that people like nic feel they should be able to do it for free. The penalty is bad politics, not bad policy (and it sure as hell is not totalitarianism and worthy of suicide). Only a fool could call it bad policy (if it accomplished the exact same outcome as a tax and credit) because you can not have guaranteed issue without a method to ensure full participation. I am sure nic will find this laugh worthy as well.
- blackton
March 20, 2012 at 8:13am
i am sorry, limiting the manner in which the penalty can be enforced. IIRC the IRS can not garnish wages, etc.
- blackton
March 20, 2012 at 8:14am
Blacton My original argument on the prior page was that we tax all sorts of conduct under the Internal Revenue Code. A penalty is implicit in, for example, renting instead of buying a home, not having kids, earing money of investing in capital gains property, investing in taxable interest instead of tax free municipals, and etc. The nomenclature is constitutionally unimportant. The power to tax includes the power to make an assessment against someone who has not purchased health insurance in the same way that working is subject to fica and self employment tax. If the Court strkes down the ACA, it opens the tax door to arguments about the unfair imposition on the public of all tax assessments.
- Nusholtz
March 20, 2012 at 10:03am
nush: The nomenclature is constitutionally unimportant. In reality it is unimportant, but whether or not it is Constitutionally unimportant remains to be seen so I am not disagreeing with you as far as reality goes, just that Democrats were dumb to give Republicans an opening with which to exploit. Had it been a tax and not a penalty Republicans would have been utterly without recourse via the courts. I simply do not trust the rationality of the Republican side when you have people threatening to kill themselves if the law is upheld, it only takes those 5 to latch onto any pretext they can.
- blackton
March 20, 2012 at 10:33am
Not that it matters much to the overall subject matter, wildboy, but I’m not sure there would be immediate standing in the deferred anti-black-vote statute hypothesized by Tristan. Or, put another way, I’m not sure the standing analysis would be any different than it is for the ACA. Article III standing to seek injunctive relief generally requires that threatened future harm at least been imminent, as well as likely. That said, I’m not sure there is any precedent regarding the issue of Article III standing where an arguably unconstitutional statute does not take effect for several years. In that case, as with the ACA, the harm may not be imminent, but it also is not speculative. And there are good prudential reasons to decide the issue now so businesses, the insurance industry, the medical industry and individual consumers of health care can arrange their affairs accordingly. Dhurtado
- NR143296
March 20, 2012 at 11:02am