Roberts vs Obama: Affordable Health Care Act goes to SCOTUS

I've heard most of today's testimony and it's mind-numbing; the only quasi-gotcha moment was the Alito moment that the NYT quoted.

well nobody really wants to be arguing today's topic

hope Santorum brings his etch-a-sketch tomorrow

http://supremecourthaiku.com/blog1/wp-content/uploads/2011/10/Supreme_Court_US_20101.jpg

HAI

What's the reasoning behind the predictions that the court will most likely uphold the mandate?

Ever-popular "wrong side of history"-based jurisprudence?

http://o.onionstatic.com/images/articles/article/27/27624/Supreme_Court-R_jpg_635x345_crop-smart_upscale_q85.jpg

What's the reasoning behind the predictions that the court will most likely uphold the mandate?

- Respect for stare decisis
- John Roberts' purported obsession with role in history
- Expansive view of Commerce Clause legislation since FDR

awww look at Sotomayor. Naturally Slobbo is scowling.

SCROTUS

lol

Dahlia Lithwick: boring is what SCOTUS does best:

It’s unlikely the court will simply boot this case down the road. (At the end of the morning’s argument, Chief Justice Roberts thanks Long for stepping in and says, “We will continue argument in this case tomorrow.” Translation: The show will go on. And now it’s for reals.), One question is why we went to all the trouble of briefing, arguing, and roping someone in to defend the Anti-Injunction Act, if the court had every intention of blowing off the first gate and hearing all three days worth of argument. That’s the wrong question. The court actually did what it does best this morning—reading complex old statutes (when Kennedy asked Long why the wording of the Anti-Injunction Act was so weird, Long basically replied that’s how people wrote back in 1867), asking practical questions, and reaching what looked to be nearly universal agreement that they’ll hear the case this year. While protestors outside were hollering about religion and freedom, the justices were boring those of us inside almost senseless with statutory construction. And sometimes, check that, most of the time, boring is what the justices do best.

What's the reasoning behind the predictions that the court will most likely uphold the mandate?

Also, getting this huge deal out of the way frees Roberts to work his conservative mojo in less conspicuous but potentially equally disastrous ways.

The mandate stuff comes up tomorrow, iirc.

- Respect for stare decisis
- John Roberts' purported obsession with role in history
- Expansive view of Commerce Clause legislation since FDR

― Exile in lolville (Alfred, Lord Sotosyn), Monday, March 26, 2012 6:31 PM Bookmark Flag Post Permalink

#1 would imply that SCOTUS doesn't like overturning lower court decisions, which I don't think is true.
#3 is not convincing, since the Rehnquist court started pushing back against the commerce clause for the first time since FDR, and the court has only grown more conservative since.

oh I agree! I'm just posting the most commonly cited arguments. I'm especially skeptical of #3.

http://www.theonion.com/articles/lawyers-opposing-health-care-law-cite-kidswithpree,27761/

hurting: http://www.tnr.com/blog/jonathan-cohn/101842/supreme-court-health-care-prediction-aba-survey-lopez

Kevin Drum answers the broccoli question.

the broccoli test is really silly because the markets for healthcare and the broccoli are not at all alike

the most obvious: a person can go her whole life without participating in the broccoli market. a person can never, ever, ever go her whole life without participating in the healthcare market.

But if everyone ate broccoli, we'd all be healthier. So the non-broccoli eaters are a drag on the healthy broccoli-eating segment of the population and thus indirectly connected to the broccoli economy.

(Is this the broccoli argument?)

well how would the non-broccoli eaters affect the economy of broccoli itself?

the broccoli argument is that if congress can force everybody to get health insurance, then congress could also force everybody to buy broccoli.

it's stupid. nobody complains that it's an invasion of their civil rights that the government requires you to buy car insurance if you have a car

yup. tea party loon on the radio this morning was yelling "why should i pay for your health care?" um, it's insurance, that's how it works. that's why you still pay money if you're never ill/in an accident/have your house broken into - you pay for the cumulative cost of everyone's coverage.

http://www.healthywriter.com/wp-content/uploads/2010/08/broccoli.jpg

http://1.bp.blogspot.com/_KsXKPR7iS3c/TGxcG4dT9sI/AAAAAAAAC7c/8bRNyg0VCPY/s1600/do_not_want.jpg

it's stupid. nobody complains that it's an invasion of their civil rights that the government requires you to buy car insurance if you have a car

― dayo, Tuesday, 27 March 2012 12:55 (49 minutes ago) Permalink

Well the counterargument to this is (1) car insurance is a state law issue, and states aren't constitutionally limited in their powers the way the federal government is supposed to be (except to the extent of their own state constitutions, obv) and (2) you don't have to buy a car. And also (3) the *official* argument against the mandate is not that it's an "invasion of civil rights" but that it's an overextension of federal powers.

They should have just called it a tax (but then it might not have passed Congress)

yeah I was just venting at some of the right wing talking points on this xp

more guessing about what the Court could do on another issue other than the mandate

http://motherjones.com/kevin-drum/2012/03/medicaid-big-sleeper-supreme-court

For decades, Congress has implemented national programs not by explicitly forcing the states to go along, but by making funding available only to those states that agree to follow federal rules. Critics have long argued that this is a subterfuge: Congress does this in cases where they don't have the constitutional power to make a program mandatory on a national basis, so instead they extort cooperation by sucking out tax dollars from the states and then agreeing to give them back only if the states go along. But subterfuge or not, courts have always ruled that this is constitutional.

So if the Supreme Court overturned the Medicaid changes, it would be a genuine earthquake. At worst, it would make hundreds of programs instantly unconstitutional and expel the federal government from playing a role in dozens of policy areas. At best, the federal government could still start programs this way, but could never change them once they'd become entrenched and were no longer "optional." This would freeze policy in place in a way that would be disastrous.

This, of course, is why most observers haven't paid a lot of attention to this part of the case: it's nearly inconceivable that the court is willing to produce this kind of bedlam. It would overturn decades of very clear precedent and produce chaos at both the state and federal levels. And unlike overturning the mandate, overturning Congress's ability to fund national programs this way would quite likely provoke a genuine constitutional crisis

yeah that's not gonna happen

yeah they could do that but I think even in the most crusty originalist's mind primary job of the SCOTUS is probably something the near opposite of "provoke a genuine constitutional crisis."

The Robert's court overriding ideology seems to be "let the ruling be narrow and the docket be light."

Do you think the Roberts Court's "Citizen Uniteed" ruling was narrow?

"let the ruling be narrow and the docket be light."

man this advice has always failed me

http://www.washingtonpost.com/politics/supreme-court-considers-main-constitutional-question-in-health-care-law/2012/03/26/gIQAkyKWdS_story_1.html

Analysis of today's hearing on the mandate suggests what we already know--it's up to Kennedy. Scalia behaves as expected.

Toobin in a panic

This law looks like it's going to be struck down. I'm telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong," Toobin just said on CNN.

Toobin added that that the Obama administration's lawyer, U.S. Solicitor General David Verrelli, was unprepared for the attacks against the individual mandate.

"I don't know why he had a bad day," he said. "He is a good lawyer, he was a perfectly fine lawyer in the really sort of tangential argument yesterday. He was not ready for the answers for the conservative justices."

Roberts substitutes cellphones for broccoli regarding question of what the government can force you to buy

NY Times blog:

Based on the tough questions asked by several of the court's conservative justices and Justice William Kennedy, a key swing vote, about the individual mandate, opponents to the health care law sounded optimistic about the law's fate after Tuesday morning's hearing.

I don't know what the hell Toobin's so pissy about. Kennedy and Roberts were always the swing votes, with Nino a long shot.

Roberts does not buy this theory it seems:

The government counters that because virtually everyone will need health care, a person who chooses to forgo insurance is engaged in economic activity: They are effectively making an economic decision about how they will pay for their eventual health care — either by paying for it out of pocket, or by passing the costs on to hospitals, governments and, ultimately, other patients.

x-post--Toobin is pissy because he thought one of the conservative justices would lean the other way; and based on their questions, none of them did

I think Roberts likes the appearance of narrowness even if the ruling is substantially more

This law looks like it's going to be struck down. I'm telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong," Toobin just said on CNN.

Toobin added that that the Obama administration's lawyer, U.S. Solicitor General David Verrelli, was unprepared for the attacks against the individual mandate.

"I don't know why he had a bad day," he said. "He is a good lawyer, he was a perfectly fine lawyer in the really sort of tangential argument yesterday. He was not ready for the answers for the conservative justices."

― Exile in lolville (Alfred, Lord Sotosyn), Tuesday, March 27, 2012 1:05 PM Bookmark Flag Post Permalink

I predicted from the moment they granted cert that the law would be struck down. It's the perfect opportunity for the conservative justices to slam down their boots against Obama and the *overexpansion of gumbint power* or whatever. If the language of the Constitution were clear one way or the other, the Conservative justices might have some imperative to go whichever way that was. Since imo the language of the Constitution gives pretty much no direction on this one, the conservatives will feel free to impose whatever interpretation suits their beliefs.

Toobin and other commentators engaging in wishful thinking imo. I hope to be proven wrong.

From WSJ:

Justice Alito was the most openly skeptical about the idea that the mandate would stop cost-shifting, wondering if in fact it forces young healthy people "to subsidize services that will be received by somebody else."

In the second half of the session, Chief Justice Roberts and Justice Kennedy asked some questions that suggested a level of sympathy with the Obama administration's defense, while justices Scalia and Alito said hardly anything that could be interpreted as favorable to the government.

Justice Kennedy wavered over the assertion that in health care, a bright line could be drawn between those engaged in commerce and those staying wholly outside the market.

A large crowd of people protesting, and supporting, the health care overhaul descended Monday on the Supreme Court, which is deciding whether the law is constitutional. WSJ's Neil Hickey reports the people had a variety of reasons for being there.

"Most questions in life are matters of degree," Justice Kennedy said. The younger, healthier Americans the law seeks to drive into the risk pool are "uniquely proximate" to affecting insurance rates, he said.

The law's challengers, including a group of 26 Republican-led states, view the insurance requirement as an unprecedented intrusion on individual liberty. They say Congress can't use its interstate-commerce powers to regulate citizens who choose not to participate in the health-insurance market.

whoops – ignore the "A large crowd" caption

U.S. Solicitor General David Verrelli, was unprepared for the attacks against the individual mandate

if true, how is this possible?

aaaaand we have audio: http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-398-Tuesday

x-post- Maybe this is analyst Toobin sounding frustrated, or maybe in all of the preparation Verelli did for the case he somehow was not ready for the type of questions he got. But it's unlikely any answers that Verelli gave would win over Alito or Scalia.

The Scotus blog focus:

http://www.scotusblog.com/2012/03/the-argument-is-done/

Towards the end of the argument the most important question was Justice Kennedy’s. After pressing the government with great questions Kennedy raised the possibility that the plaintiffs were right that the mandate was a unique effort to force people into commerce to subsidize health insurance but the insurance market may be unique enough to justify that unusual treatment. But he didn’t overtly embrace that. It will be close. Very close.

Doesn't it seem a bit ridiculous, when you step back from this issue a bit, that whether or not we can have a workable healthcare system in this country depends on competing semantic arguments?

If they strike down the ACA, they would be torching about 70 years worth of well-established precedent that is the foundation of a HUGE amount of settled law. If this happens, then how the opinion is reasoned and how the boundaries conditions are tested is going to be massively important to future jurisprudence at the federal level.

With Roberts, Scalia, Alito and Thomas in place, this sort of radical, Samson-pulls-the-temple-down act is exactly what this court was constructed for. I sure as shit hope Kennedy doesn't fall for this.

indeed

I wonder how many people are going to get these surprise checks and if it'll have any discernable nationwide stimulus-by-proxy effect.

Can anyone help me refute this?

http://www.nationalreview.com/articles/337658/pity-young-katrina-trinko

living people paying more so people don't die, shed a tear

don't young ppl get covered under their parent's insurance until they're 26?

In other words, here’s what Obamacare “gives” young adults: a requirement to subsidize the health-care costs of their elders, who have had decades to increase their salary and save.

what a world

in other other words here's what Obamacare "gives" young adults: when they're old their health-care costs will be subsidized

why are we taking care of these old people, they should have saved

some guy called into npr here recently and was explaining that he worked really hard and didn't make a lot of money and didn't see any benefit he got out of government programs. the host asked, incredulously, "surely you'll benefit from social security when you retire?" he responded, "i work so hard i don't have time to think about the future."

Roll up your jeans, guys, and step into the comments pool.

The future doesn't think much of you, either, buddy

btw I misread the website as nationalgeographic.com for some reason and was pretty sad for a minute there.

the US already has a relatively decent subsidized healthcare program for the elderly called Medicare -- it starts at 65. I'm not sure I understand why the premiums for young people -- who for the most part earn the least -- should increase so drastically while the premiums of people ages 61-64 should increase almost not at all. If it were true, it would be both inequitable and economically foolish. But because this is the National Review I imagine there's something being left out of the analysis.

Premiums for young people on average will increase because a bunch of people are running around without health insurance right now and they'll be paying more than $0

premiums have been careening upward well before HCR; the insurance industry is good at making money. I'm skeptical that the ACA impairs their profits in such a way that they have to jack up premiums any more than they would otherwise.

insurance industry is doing a-ok under ACA, you bet

Premiums for young people on average will increase because a bunch of people are running around without health insurance right now and they'll be paying more than $0

― mh, Tuesday, January 15, 2013 6:46 PM Bookmark Flag Post Permalink

This is definitely true, but it's not the scenario the article purports to address.

premiums have been careening upward well before HCR; the insurance industry is good at making money. I'm skeptical that the ACA impairs their profits in such a way that they have to jack up premiums any more than they would otherwise.

― Matt Armstrong, Tuesday, January 15, 2013 6:48 PM Bookmark Flag Post Permalink

This is also definitely true. My premium went up about 9% this year. It will be interesting to see whether the increase is any greater with ACA in effect.

tbf the industry has been jacking up rates in anticipation of the future

Yeah the insurance industry would be jacking up rates regardless. This is just a good excuse.

http://healthland.time.com/2013/02/20/bitter-pill-why-medical-bills-are-killing-us/print/

long, super interesting article

Ugh, I went to the ER on Monday, not excited to see how my insurance does or does not cover it.

here we go again!

p nervous tbh

so is Donald Verelli.

Can't believe how they are going to brush over the standing issue:

When the Solicitor General took the lectern, he elected to begin by talking about standing, which had been raised by Justice Ginsburg. The short version of his point is that as long as one of the plaintiffs had to pay a tax penalty in 2014, one of the plaintiffs would have standing. The SG explained that the government simply does not know whether that is true because there has been no fact-finding in the case. He further stated that as long as the other side does not represent that their clients lack standing, he would assume that they do in fact have it, and proceed to the merits. There was a little bit of skeptical questioning about this: the Chief Justice and Justice Alito both suggested that standing should not be adjudicated at this stage. And the SG did not fight them on that. Interestingly, Justice Sotomayor also jumped in to say that the Court could accept Carvin’s representation that there is standing, thus suggesting her desire to reach the merits.

http://www.scotusblog.com/2015/03/continued-updates-on-oral-arguments-in-king-v-burwell/#more-225683

a complete cave in on standing. damn.

the only possible explanation is Ginsberg thinks she has the votes today and she knows that she'll have to retire soon.

oh great:

Trained constitutional lawyers will find it noteworthy that his focus here is on the consequence for states as such, and not for their citizens; Kennedy’s concern is about the federal/state balance and his distrust of a reading that puts a gun to the head of states that fail to set up their own exchanges – threatening them with the almost certain destruction of their statewide insurance systems if they do not comply. That concern might be interpreted (as a matter of legal theory) in a few different ways: Justice Kennedy might believe that Congress would not have intended to set up such a dubious system; he might believe that this reading is required but actually unconstitutional (so that he would strike down the statute’s condition that subsidies apply only to exchanges established by the state); or – perhaps most likely – he might believe that the statute should be interpreted so as to avoid the “serious constitutional problem” he identified.

For those less immersed in the legal niceties, however, I think the key takeaway is that – in a case that seemingly pits literalism against contextualism – Justice Kennedy was very attentive to the consequences of the reading that petitioners urged. He seemed to realize that state legislators would be in an impossible position under that reading – more or less forced to “adopt” or “endorse” the ACA system in order to avoid unmanageable consequences in their states. His plausible conclusion was that Congress either did not intend to put them to that choice, or that the statute shouldn’t be read to have done so, because that’s not typically how our constitutional system works. Instead, the federal government makes and administers federal laws without forcing the states to do some of the work for them. Kennedy seemed to be thinking that this provision should be read more like the typical case, and rather unlike the kind of unusual provision the petitioners suggested.

http://www.scotusblog.com/2015/03/king-v-burwell-updates-kennedy-concerned-about-consequences/

The transcript. For lunchtime laffs, turn to page nine and read how Elena Kagan flummoxes the plaintiff's lawyer Michael Carvin with a question about Elizabeth, Will, and Amanda, three imaginary tasks assigned writing and editing duties.

*three imaginary clerks

is the weakest of the early Cure records

Can't believe how they are going to brush over the standing issue:

When the Solicitor General took the lectern, he elected to begin by talking about standing, which had been raised by Justice Ginsburg. The short version of his point is that as long as one of the plaintiffs had to pay a tax penalty in 2014, one of the plaintiffs would have standing. The SG explained that the government simply does not know whether that is true because there has been no fact-finding in the case. He further stated that as long as the other side does not represent that their clients lack standing, he would assume that they do in fact have it, and proceed to the merits. There was a little bit of skeptical questioning about this: the Chief Justice and Justice Alito both suggested that standing should not be adjudicated at this stage. And the SG did not fight them on that. Interestingly, Justice Sotomayor also jumped in to say that the Court could accept Carvin’s representation that there is standing, thus suggesting her desire to reach the merits.

http://www.scotusblog.com/2015/03/continued-updates-on-oral-arguments-in-king-v-burwell/#more-225683

― curmudgeon, Wednesday, March 4, 2015 11:21 AM (2 hours ago) Bookmark Flag Post Permalink

i'm fine with them having standing to sue. kind of a bad look for liberals to want this case to be thrown out on standing but get all mad when courts throw out surveillance cases on standing.

really loved the highlight reel, on NPR this morning, of Republicans assuming the state's arg (that the subsidy extends regardless of the state's decision to establish a marketplace). really put things in perspective re how shitty this whole mess is

x-post--seems like the Justice Dept blew it by not looking into standing earlier. Mother Jones writer thought of it, but they never did. Weird.