Roberts vs Obama: Affordable Health Care Act goes to SCOTUS

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

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

but there'll be an awful stink in the room

None of this is going to hinge on any of the arguments made in the court so all the hand-wringing about how shitty the SG's performance is are just lame. Jeff Toobin should know better frankly.

re verilli's first bungled response posted slightly upthread: there's no pressing need for legislation to deal with the cost of funeral insurance and the consequences of non-insurance on the millions of americans who can't afford it. so the question is irrelevant. there IS, however, a pressing need for such legislation when it comes to health insurance, and the legislation is constitutionally justified by significant precedent relating to interpretation of the commerce clause. that's the damn answer.

yeah, okay, fair point alex

anyway, from what I understand, the court would have to do a lot more work to strike down this bill than to uphold it.. so here's for institutional inertia

v excitable on intrade

http://i.minus.com/ibyLaLmfaqtZNM.png

the commerce clause is just, like, so awesome.

re the Roberts legacy speculation:

I think based on his insular private school education when he was younger and being a top student at Harvard both undergrad and law school, plus more importantly than that, his rulings so far, Roberts is more invested in arrogantly knowing that he's correct, and he thinks that his legacy will eventually reflect that, even if the liberal media and some protestors don't like his decisions. While he is more concerned about appearances than Thomas or Scalia, he seems to largely reach the same bottom line decision

the fact that the supreme court isnt broadcast on tv is one of the biggest bummers, h8 the supreme court what assholes

this is a good piece btw http://www.slate.com/articles/news_and_politics/jurisprudence/2012/03/the_supreme_court_is_more_concerned_with_the_politics_of_the_health_care_debate_than_the_law_.single.html

The Court has always been concerned with the politics of the decisions that directly affect the vast majority of citizens. This case is no different.

How is Lithwick not a staff writer at the New Yorker?

wtf with burial question, part of the reason there is interstate commerce occuring is because the other side of the transaction is already federally regulated- and that very regulation creates the free-rider problem wrt to emergency services for those who are not covered. is there a similar situaton with burial?
xpost

SCOTUSBLOG tweeted earlier:

Paul Clement gave the best argument I've ever heard. No real hard questions from the right. Mandate is in trouble.

lithwick otm

I always have liked most of what Lithwick has written, but I do not think she makes a strong argument for this statement:

Because, as it happens, the current court is almost fanatically worried about its legitimacy and declining public confidence in the institution.

Roberts gives a superficial amount of attention to these issues but the hearings are still not televised, there is no ethics code for Supreme Court justices and Citizens United and other cases show a lack of interest in stare decisis.

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.

^^^

declining public confidence in the institution current sitting justices

We must assume that these statements flying around for weeks about Roberts' "obsession with prestige" come from Bloody Mary Sundays at Cokie's. I have literally read nothing in the last few months adducing the degree to which this decision affects the court's "institutional prestige."

Lithwick seems to have bought Roberts spin on it (rather than Cokie not related Roberts spin on Justice Roberts):

Roberts even nodded at that court-wide anxiety by devoting most of his 2011 State of the Judiciary report to issues of recusal and judicial integrity, and by reversing his own policy on same-day audio release, in order to allow the American public to listen in on the health care cases next week (albeit on a two-hour delay).

This is mostly just lipservice though since Robert did not suggest an openness to changing recusal practices or allowing tv. And it's a big jump to go from this stuff, to Robert is gonna support a mandate on health insurance

Lithwick also blames the Obama White House for not defending health care after it was passed, as playing a role in getting this issue to the Supreme Court. But if Obama had used his bully pulpit more and Dems stood up that summer when tea partiers were first carrying on about death panels, wouldn't this just be more like abortion--2 set views, neither of which will change. Opponents of health care would have challenged this no matter what imho.

The thing is, yes, every SCOTUS decision is going to be to some degree based on politics, but this one is particularly ripe for political-based rulings because there's so little help one way or the other in the actual text of the Constitution, or, really, in past decisions. And that's why I say it DOES come down to a semantic argument, albeit one fueled by politics.

What I mean is that if Congress passes a law that is absolutely loathed by conservatives but is CLEARLY within congressional power in the Constitution, even the most conservative justice will have a much harder time striking it down.

It's possible her take on Roberts has been distilled from his general demeanor in interviews and public appearances. As opposed to Scalia or Thomas, who are basically unabashed assholes, Roberts at least humors decorum.