Bamacare Debate On

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Bamacare Debate On

  http://www.oyez.org/cases/2010-2019/2011/2011_11_400

 

The audio for the first arguments is now available online. Today's argument was to determine whether or not SCOTUS has the jurisdiction to decide this case. The question involves the Anti-Injunction Act which basically requires that a tax is actually paid before it can be challenged in court. It is mostly a legalese question, one of which SCOTUS has a lot of incentive to find a way around the AIA.

 

The real importance in the day isn't so much whether or not SCOTUS will decide if they have jurisdiction but how SCOTUS is going to decide it has jurisdiction. Are they going to declare an exception? Declare the AIA does not apply? All of the lawyers involved in the case are arguing that the AIA does not apply so the Court had to appoint a 3rd party to argue that the AIA does apply. Mr. Long did about as good a job as could be expected arguing for the AIA, but it seemed quite clear that the justices were skeptical and inclined to decide that SCOTUS can rule in this case. 

 

What I found really interesting is that Justice Breyer was the first one to question whether the penalty in the individual mandate was a tax. 

Justice Breyer wrote:

 

....we have spent all the time so far on jurisdiction. And I accept, pretty much, I'm probably leaning in your favor on jurisdiction, but where I see the problem is in the second part, because the second part says "restraining the assessment or collection of any tax." 

 

Now, here, Congress has nowhere used the word "tax". What it says is penalty. Moreover, this is not in the Internal Revenue Code "but for purposes of collection".

 

And so why is this a tax?

 

This is significant because the solicitor general is arguing that congress has the power to enforce the mandate because it is a tax. A point of hypocrisy that Justice Alito pointed out when solicitor general argued the mandate was not a tax.

 

Justice Alito wrote:

 

General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax. 

 

Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?

 

A good portion of the argument tomorrow will be over whether or not it is a tax, because putting it under congresses taxation power is the easiest way to argue the law is constitutional.

 

Justice Breyer is considered to be likely to uphold the law. If he remains skeptical that the mandate is a tax and rules against Bamacare there is no way the law will be upheld. It is pretty safe to say that Justices Roberts, Alito, Scalia and Thomas will all rule against the mandate.

 

Supreme Court justices are good lawyers who often do a great job playing devils advocate in their questions, so maybe I am reading too much into it. But to me, the way he sounded, the way he phrased it and the fact that it was the first thing he said has convinced me that Justice Breyer might not give weight to the argument that the mandate is a tax. If the other left leaning justices are having similar doubts the solicitor general is going to have an uphill battle tomorrow. 

 

 

 

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 I wish they wouldn't call

 I wish they wouldn't call this "<x>care" because it doesn't actually provide care.

Unless, of course, you have a sick insurance company you're trying to help.

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jcgadfly wrote: I wish they

jcgadfly wrote:

 I wish they wouldn't call this "<x>care" because it doesn't actually provide care.

Unless, of course, you have a sick insurance company you're trying to help.

 

Lol, yeah, but that would ruin the great legislative tradition of making sure the title of a law has absolutely no relation to what the law actually does.

 

The second day of argument is available from the link in the OP. The day focused on the individual mandate. As expected the conservative leaning justices swarmed General Verrilli and were joined by Justice Kennedy in asking extremely critical questions. The justices posed several hypothetical laws to determine exactly how federal power would be limited. Could the government force you to buy a cell phone in order to improve emergency response times of police/fire/ambulance? Could the government force you to purchase burial insurance?

 

Verrilli tried to draw a distinction, which I think is a mistake- especially in the case of burial insurance because it is pretty clear that if the government does have the power to purchase health insurance just because you might get sick, it also has the power to force you to buy burial insurance because you will die. Trying to draw a distinction simply weakened his argument imo.

 

I think Verrilli did a very poor job outlining a clear distinction of why congress can impose a mandate to purchase health insurance but can't impose mandates on anything else. His argument really relied on the health market being different from any other market, but in the end he failed to explain a clear limiting principle outside of the whim of congress to decide that compelling the purchase of health insurance is a good idea but compelling the purchase of burial insurance is not. 

 

The liberal leaning justices threw the kitchen sink at the respondents, I think they did a good job responding. While I personally believe that the currently accepted definition of the commerce power of congress is far beyond what was initially intended by the Constitution and would love to see it trimmed a bit (or a lot), the respondents made the case that the line should be strictly drawn at the choice to buy or not buy a product. They conceded that once you purchase or sell a product you are engaged in commerce and congress has a lot of power to regulate, but congress does not have to power to compel you to purchase a product. Probably the most practical argument for the purposes of getting the ACA struck down.

 

If you have any interest in Supreme Court arguments it is definitely worthwhile to listen to Paul Clement argue- he is one of the most experienced lawyers at arguing in front of the Supreme Court and yesterday it really showed.

 

It was morality that burned the books of the ancient sages, and morality that halted the free inquiry of the Golden Age and substituted for it the credulous imbecility of the Age of Faith. It was a fixed moral code and a fixed theology which robbed the human race of a thousand years by wasting them upon alchemy, heretic-burning, witchcraft and sacerdotalism.-H.L. Mencken


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 The third and fourth

 The third and fourth arguments are now available at the link in the OP which wraps up the oral arguments on this case. 

 

The third argument was on severability- iow if the Court finds that the mandate is unconstitutional how much of the ACA will be thrown out. Obviously, the challengers of the law want the whole thing thrown out, the government is arguing that only the provisions requiring insurers to insure people with pre-existing conditions and the ban on charging higher rates for people with health conditions, and a third court appointed lawyer argued that only the mandate itself needed to be struck down.

 

The whole issue revolves around the Court desiring to exercise judicial restraint which means they don't want to step on the toes of congressional power. However, without the individual mandate the law is radically different from what congress passed and determining which parts of the law would be damaged enough to be removed as well and which can stand on their own is not an easy task. The government did offer several good points in that much of the 2,700 page law does not rely on the individual mandate whatsoever and for much of the law there is no one disputing congresses constitutional authority. 

 

Yet, while the justices might desire to leave as small a footprint as possible, it seems there really isn't a practical way to pick and choose which provisions should remain in effect and which need to be repealed. I think a brief exchange between Mr. Kneedler and Justices Scalia, Sotomayor, Kagan illustrates the central problem. 

 

Quote:

Justice Antonin Scalia: Mr. Kneedler, what happened to the Eighth Amendment?

 

You really want us to go through these 2,700 pages?

 

And do you really expect the Court to do that?

 

Or do you expect us to -- to give this function to our law clerks?

 

Is this not totally unrealistic?

 

That we are going to go through this enormous bill item by item and decide each one?

 

Mr. Kneedler: --Well--

 

Justice Sonia Sotomayor: I thought the answer was you don't have to because--

 

Mr. Kneedler: --Well, that is, that is the--

 

Justice Sonia Sotomayor: --what we have to look at is what Congress said was essential, correct?

 

Mr. Kneedler: --That is correct, and I'd also like to -- going -- I just want to finish the thought I had about this being a matter of statutory interpretation.

 

The Court's task, we submit, is not to look at the legislative process to see whether the bill would been -- would have passed or not based on the political situation at the time, which would basically convert the Court into a function such as a whip count.

 

That is not the Court's--

 

Justice Elena Kagan: And Mr. Kneedler, that would be a revolution--

 

Mr. Kneedler: --Yes.

 

Justice Elena Kagan: --in our severability law, wouldn't it?

 

Mr. Kneedler: It would.

 

Justice Elena Kagan: I mean, we have never suggested that we were going to say, look, this legislation was a brokered compromise and we are going to try to figure out exactly what would have happened in the complex parliamentary shenanigans that go on across the street and figure out whether they would have made a difference.

 

Instead, we look at the text that's actually given us.

 

For some people, we look only at the text.

 

It should be easy for Justice Scalia's clerks.

 

Mr. Kneedler: I -- I think -- I think that--

 

Justice Antonin Scalia: I don't care whether it's easy for my clerks. I care whether it's easy for me.

 

It was morality that burned the books of the ancient sages, and morality that halted the free inquiry of the Golden Age and substituted for it the credulous imbecility of the Age of Faith. It was a fixed moral code and a fixed theology which robbed the human race of a thousand years by wasting them upon alchemy, heretic-burning, witchcraft and sacerdotalism.-H.L. Mencken


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 The final argument was so

 The final argument was so enthralling to the justices that they decided to add an extra 20 minutes. The final issue is the constitutionality of the medicaid expansion in the ACA. Mr. Clement once again argued for the challengers that the provision violates state sovereignty and is overly coercive. The specific provision that he argues is coercive says that states must accept the medicaid expansion or the secretary can revoke all federal money that states are currently receiving. 

 

This puts states in a very difficult position. For many states, the new law is going to put a large strain on already struggling budgets and if they refuse the expansion they face the budget and political reality of no longer having any federal money and no healthcare program for the poor. 

 

During the argument the justices were pretty open with their views on the issue with the left leaning justices tearing apart Mr. Clement and the right leaning justices tearing apart General Verrilli. There is a chance they could rule on it even if the individual mandate survives but if it is ruled on it will certainly be a 5-4 decision along ideological lines. It seems like the right leaning justices are very eager to rule on this issue and based on the questions Justice Kennedy seems inclined to see the expansion as coercive. 

It was morality that burned the books of the ancient sages, and morality that halted the free inquiry of the Golden Age and substituted for it the credulous imbecility of the Age of Faith. It was a fixed moral code and a fixed theology which robbed the human race of a thousand years by wasting them upon alchemy, heretic-burning, witchcraft and sacerdotalism.-H.L. Mencken


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The funniest video I saw was

The funniest video I saw was when Rush went to Hawaii and held a press conference at the hospital NOT KNOWING it was a union hospital.

FYI Beyond, you already have mandated health care. I have none myself, so when and I WILL EVENTUALLY get sick and end up in the emergency room, who pays for it? So if you are against government mandates, then don't pay your taxes because that WOULD pay for my medicare. WHEN I use it, and eventually I will.

But your stupid problem is that WHEN I do, rather than having insurance I can afford, it will be MORE expensive and DRIVE UP COSTS which it does when I use it. Would you like to cut that too, because that would simply make you a heartless bastard, and I like you too much to think of you that way.

"every man for themselves" does not work Beyond, if you want to live in a state with that mentality, Somalia would be great for you since you already have money. You could just be a warlord just like the few rich people that do run the country.

YOU CANNOT run a government like a business, because they are NOT the same thing. You can certainly work to keep costs down, but government is not simply a spreadsheet or a time clock. Until you realize that which you probably never will, you WONT understand the mistake you keep propping up. And if overturned the court will only serve to piss off a base I really don't think you want to piss off.

 

 

 

 

 

 

 

 

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Brian37 wrote:FYI Beyond,

Brian37 wrote:

FYI Beyond, you already have mandated health care. I have none myself, so when and I WILL EVENTUALLY get sick and end up in the emergency room, who pays for it? So if you are against government mandates, then don't pay your taxes because that WOULD pay for my medicare. WHEN I use it, and eventually I will.

I am all for getting rid of medicare too but as to the constitutional question it is fundamentally different. This law does not require you to pay your doctor, it does not simply subsidize those who can't afford to pay their doctor, it requires that you and me pay a 3rd party, an insurance company to pay for our medical needs. Regardless of whether or not we want to.

 

I don't like insurance companies, I worked for one once. I hate them, and I do everything I can to avoid giving any money to insurance companies. They are large, mostly inefficient, bureaucratic organizations and with proper financial planning insurance is often a waste of money. Yet now the government declares it has the authority to force me to purchase a product I don't want, I don't need and I strongly believe is not in my best interest from a private company.

 

I don't understand how you, as the person who screams most about corporate welfare, can support a law that forces you to buy a product from a corporation. It is extremely dangerous for a government to have the power to force citizens to buy a product from specific companies because it believes it is a good idea. I strongly recommend you take the time to listen to the day two arguments and educate yourself on the issue. It goes far beyond healthcare, this is a Supreme Court precedent that is going to be made and it will apply to laws devised in the future as well.  

 

 

Brian37 wrote:

But your stupid problem is that WHEN I do, rather than having insurance I can afford, it will be MORE expensive and DRIVE UP COSTS which it does when I use it. Would you like to cut that too, because that would simply make you a heartless bastard, and I like you too much to think of you that way.

Well I'm not stopping you from buying your own health insurance if you think you need it. No one has suggested that people should be denied care. I do suggest that you be required to pay as much as you can for your medical services. If you do not have health insurance that may mean you go bankrupt. 

 

 

Brian37 wrote:

YOU CANNOT run a government like a business, because they are NOT the same thing. You can certainly work to keep costs down, but government is not simply a spreadsheet or a time clock. Until you realize that which you probably never will, you WONT understand the mistake you keep propping up. And if overturned the court will only serve to piss off a base I really don't think you want to piss off.

Whether or not the ACA saves money is irrelevant. Whether or not it is a good idea is irrelevant. The question is simply whether or not congress has the constitutional authority to pass laws requiring citizens to purchase a product from a private company simply because they are alive. The intent of the constitution was to limit the power of congress, even if it is limited from doing things that might very well be beneficial, because those limits also help protect us from harm. 

 

Do you believe congress has the power to force you to purchase products? Is that power unlimited? Could congress force you to buy broccoli? A fitness club membership? A treadmill? A gun? A cell phone? A dildo? On what grounds can you argue that congress can constitutionally force you to buy health insurance but does not have the power to force you to buy other products?

 

The Constitution does not say congress can pass whatever it wants as long as it is a good idea or popular. In theory congress has limited powers. If congress can order you to buy whatever damn product they please because they think it is a good idea, well that doesn't seem very limited to me.

 

 

 

 

 

 

It was morality that burned the books of the ancient sages, and morality that halted the free inquiry of the Golden Age and substituted for it the credulous imbecility of the Age of Faith. It was a fixed moral code and a fixed theology which robbed the human race of a thousand years by wasting them upon alchemy, heretic-burning, witchcraft and sacerdotalism.-H.L. Mencken


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Beyond Saving wrote:
The Constitution does not say congress can pass whatever it wants as long as it is a good idea or popular. In theory congress has limited powers. If congress can order you to buy whatever damn product they please because they think it is a good idea, well that doesn't seem very limited to me.

The idea of forced purchase is hardly new. The definition of "purchase" is new. I am forced to "purchase" Medicare. This is over and above my pre-retirement Medicare taxes. With Medicare it is purchased for me like it or not. What the gov provides does not differ from medical insurance in any meaningful sense.

The bottom line is no one trusts insurance companies. It is not a secret they employ people to review claims for the purpose of disallowing claims.

Let us assume for the moment that it does go into effect. Do the Americans here remember the annoying, repetitive ads in Nov and Dec last year going after Medicare dollars? Did any of them make sense? That is what everyone will be treated to for their purchase of health insurance. The best you get is a sales pitch to come to a seminar. There were maybe ten different companies advertising.

There are maybe a hundred health insurance companies. Their plans are so different there is no way to compare them. Fed employees have to choose one but 30 years ago they begged off providing brochures as to what they covered. Gov employees have to buy a pig in a poke, literally. If this survives so will everyone. For the record this is the same system congressmen use. This is perhaps why it passed in this form.

Despite my libertarian principles I have to admit I can find no more rational system than a single payer one run by the gov not this BS political compromise. It is contrary to those principles but it would cut health care costs by about half. Every rational analysis shows that to the result. Medicare runs on 4% admin costs. Insurance companies run on 30% plus 5 to 10% profit on the gross. All those costs are in insurance premiums. Meaning as insurance Medicare at roughly $100 is worth $96 while a same price private insurance is worth no more than $65.

Doctors pay others to process insurance claims and that cost is in their fees that you pay. (They also pay about $100,000 per year minimum in malpractice insurance. Divide by number of patients they see per year and that is in their fees too. But that is another story.)

Also Veterans' Hospital close up shop for a savings. Medicaid ends for another savings. Theoretically wages rise as employer insurance contributions become wages -- wishful thinking I know but theoretically correct.) Regular health care is cheaper than emergency room and hospitalization for another savings.

The second highest per capita cost of medical care in the world is Canada at 10%. The US is 20%. Despite the patriotic BS, the US does not have the best medical care in the world, not even close. Having the largest number of world class medical treatment centers does not mean the average of medical care is high.

There should not be "socialized" medicine. But over half the medical coverage in the US falls under the political definition of socialized and still costs so much and still is far from the best.
 

The system is broke. It almost can't get worse.

 

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Ok, the system sucks, got

Ok, the system sucks, got it.

But I will never be for "if you cant pay die quickly". That is merely economic Darwinism.

There ARE examples outside our borders that seem to work far better.

More of the same wont work.

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Teralek

 

Maher can be funny - and often he is just repeats the truth to get the biggest laughs.

 

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cj wrote:Teralek

cj wrote:

 

Maher can be funny - and often he is just repeats the truth to get the biggest laughs.

 

 

Well it was actually a gross mischaracterization of Florence v. Board of Freeholders, the decision does not make it constitutional to randomly strip search people for any minor infraction. It only allows non-physical strip searches for people being put into general population. Someone being temporarily detained without being charged or being held outside of general population is not subject to a strip search without reasonable suspicion. The purpose of the strip searches is because people can and do try to sneak contraband and weapons into prisons. The Court basically just said that local law and regulations should determine exactly who should be subject to search, in what circumstances and when in cases where a person is going to be housed in general population. 

 

But I will give Jon the benefit of comedic license and relying on news stories by ignorant reporters. It is amazing the outright falsehoods that are reported as "news" on tv that can easily be debunked by a 30 second google search. All those so called "reporters" should be fired.

 

Lyle Denniston wrote a good article explaining the important details of the decision in this case. He is usually my fallback when I am too lazy or don't care enough to actually read the opinion myself. 

http://www.scotusblog.com/?p=142415

 

It was morality that burned the books of the ancient sages, and morality that halted the free inquiry of the Golden Age and substituted for it the credulous imbecility of the Age of Faith. It was a fixed moral code and a fixed theology which robbed the human race of a thousand years by wasting them upon alchemy, heretic-burning, witchcraft and sacerdotalism.-H.L. Mencken


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Brian37 wrote:Ok, the system

Brian37 wrote:
Ok, the system sucks, got it.

In the same sense that WW2 Japan was forced to "tolerate the intolerable", you've been defending a law that is indefensible. It's no secret that politics are decided primarily along party lines, in this ailing, troubled country of ours. 

Would you like examples of the former?

Maybe it's because of ideology and the original universal healthcare law that incites some of your "fangs" regarding Obama's presidency (namely the criticisms directed towards our current prez and welfare programming.)

This is also something else to baffle your mind: "HDI" sucks here (it's no secret) for much of the working poor but as bad as some of the peasants think it is in the 21st century, America has a LONG ways to go before we hit 'Sierra Leone'...

...before we hit rock bottom. Then the 'fun' begins, in the most... cynical Military Coup-esque sense of the word.

Quote:

But I will never be for "if you cant pay die quickly". That is merely economic Darwinism.

There ARE examples outside our borders that seem to work far better.

That's because people either have private options, or everyone, top-to-bottom, pays their fair share and has a vested interest in their social programming. None of which, guarantees that it will work here.

Quote:
More of the same wont work.

Gee, what was your first clue? Maybe that so many stupid, sweeping laws have been passed into existence in the past two decades?

“A meritocratic society is one in which inequalities of wealth and social position solely reflect the unequal distribution of merit or skills amongst human beings, or are based upon factors beyond human control, for example luck or chance. Such a society is socially just because individuals are judged not by their gender, the colour of their skin or their religion, but according to their talents and willingness to work, or on what Martin Luther King called 'the content of their character'. By extension, social equality is unjust because it treats unequal individuals equally.” "Political Ideologies" by Andrew Heywood (2003)