Roberts vs Obama: Affordable Health Care Act goes to SCOTUS

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.

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.

It seems very unlikely that they'll strike down the entire act, let alone in a way that will overturn 70 years worth of precedent. There are plenty of ways they can rule against 'Obamacare' that don't involve that kind of torching.

individual mandate always seemed like a horrible way to get the legislation through, esp if the penalty assessed for non-compliance were not treated as paid enrollment in some kind of government-sponsored basic healthcare plan. america requires a comprehensive public health insurance/healthcare system, and while i would be terribly saddened to see this legislation struck down, i understand that it was shaky constitutional ground from the beginning.

and hurting OTM about how surgically precise the eventual ruling is likely to be, if they do reject the law

the words' "health care mandate" do not actually appear in the law.

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?

semantic arguments have very little to do w/ it, it depends on political appointments and how one particular political appointment is feeling

JUSTICE ALITO: Do you think there is a, a
market for burial services?

GENERAL VERRILLI: For burial services?

JUSTICE ALITO: Yes.

GENERAL VERRILLI: Yes, Justice Alito, I
think there is.

JUSTICE ALITO: All right, suppose that you
and I walked around downtown Washington at lunch hour
and we found a couple of healthy young people and we
stopped them and we said, "You know what you're doing?
You are financing your burial services right now because
eventually you're going to die, and somebody is going to
have to pay for it, and if you don't have burial
insurance and you haven't saved money for it, you're
going to shift the cost to somebody else."
Isn't that a very artificial way of talking
about what somebody is doing?

GENERAL VERRILLI: No, that -­

JUSTICE ALITO: And if that's true, why
isn't it equally artificial to say that somebody who is
doing absolutely nothing about health care is financing
health care services?

GENERAL VERRILLI: It's, I think it's
completely different. The -- and the reason is that
the, the burial example is not -- the difference is here
we are regulating the method by which you are paying for
something else -- health care -- and the insurance
requirement -- I think the key thing here is my friends
on the other side acknowledge that it is within the
authority of Congress under Article I under the commerce
power to impose guaranteed-issue and community rating
forms, to end -- to impose a minimum coverage provision.
Their argument is just that it has to occur at the point
of sale

rough

yikes

fuck, that's damning. i know that's just an extract of a much longer/larger debate, but it makes it sound as though verrilli has no idea to defend the most basic elements of the case he's trying to defend.

defend/defend

for one thing, basic burial services tend to be fixed

I mean, the price of basic burial services

sometimes justices ask hypotheticals to get counsel to focus on essentials; sometimes they ask questions that they genuinely think has something to do with the matter at hand; sometimes they're assholes.

think this is the latter

burial services also a quarter of the US GDP or whatever healthcare is now

also NOT argh

if the court strikes down the individual mandate, regardless of how narrow/surgical/precise it is, it will be used as precedent for future challenges to other federal programs

JUSTICE KENNEDY: Could you help -- help me
with this. Assume for the moment -- you may disagree.
Assume for the moment that this is unprecedented, this
is a step beyond what our cases have allowed, the
affirmative duty to act to go into commerce. If that is
so, do you not have a heavy burden of justification?
I understand that we must presume laws are
constitutional, but, even so, when you are changing the
relation of the individual to the government in this,
what we can stipulate is, I think, a unique way, do you
not have a heavy burden of justification to show
authorization under the Constitution?

GENERAL VERRILLI: So two things about that,
Justice Kennedy. First, we think this is regulation of
people's participation in the health care market, and
all -- all this minimum coverage provision does is say
that, instead of requiring insurance at the point of
sale, that Congress has the authority under the commerce
power and the necessary proper power to ensure that
people have insurance in advance of the point of sale
because of the unique nature of this market, because
this is a market in which -- in which you -- although
most of the population is in the market most of the
time -- 83 percent visit a physician every year; 96
percent over a five-year period -- so virtually
everybody in society is in this market, and you've got
to pay for the health care you get, the predominant way
in which it's -- in which it's paid for is insurance,
and -- and the Respondents agree that Congress could
require that you have insurance in order to get health
care or forbid health care from being provided -­

JUSTICE SCALIA: Why do you -- why do you
define the market that broadly?

UGH. Nino actually used the broccoli theory.

I wonder how roberts feels about his legacy as presider over the 'roberts court' - have heard that he was a bit shaken over how widely reviled citizens united is, maybe he's a little bit invested in protecting his legacy? idk

Ginsberg to the rescue:

JUSTICE GINSBURG: Mr. Verrilli, I thought
that your main point is that, unlike food or any other
market, when you made the choice not to buy insurance,
even though you have every intent in the world to
self-insure, to save for it, when disaster strikes, you
may not have the money. And the tangible result of it
is -- we were told there was one brief that Maryland
Hospital Care bills 7 percent more because of these
uncompensated costs, that families pay a thousand
dollars more than they would if there were no
uncompensated costs. I thought what was unique about this is it's
not my choice whether I want to buy a product to keep me
healthy, but the cost that I am forcing on other people
if I don't buy the product sooner rather than later.

yeah for one thing if you postpone burial service preparations, the cost of your eventual burial will go DOWN not up.

JUSTICE BREYER: All right. So if that is
your difference -- if that is your difference, I'm
somewhat uncertain about your answers to -- for example,
Justice Kennedy asked, can you, under the Commerce
Clause, Congress create commerce where previously none
existed. Well, yeah, I thought the answer to that
was, since McCulloch versus Maryland, when the Court
said Congress could create the Bank of the United States
which did not previously exist, which job was to create
commerce that did not previously exist, since that time
the answer has been, yes. I would have thought that
your answer -- can the government, in fact, require you
to buy cell phones or buy burials that, if we propose
comparable situations, if we have, for example, a
uniform United States system of paying for every burial
such as Medicare Burial, Medicaid Burial, CHIP Burial,
ERISA Burial and Emergency Burial beside the side of the
road, and Congress wanted to rationalize that system,
wouldn't the answer be, yes, of course, they could.

like, you'll just be buried/cremated/thrown in a ditch in the cheapest manner possible

xp

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.