Roberts vs Obama: Affordable Health Care Act goes to SCOTUS

x-post-

Not really.

if it's struck down, Obama will def get a landslide in November

if its struck down, im not saying that someone should assassinate a justice or two

or yknow 5

TPM otm;

The snap reactions to today’s Supreme Court arguments about the constitutionality of the health care law’s individual mandate gave reform supporters a collective case of heartburn. The conservative justices seemed broadly hostile to the law’s requirement that everyone carry health insurance. President Obama’s Solicitor General, Donald Verrilli, was widely panned by experienced court watchers for stumbling at key moments. Jeffery Toobin — a seasoned vet of the high court — called it a “train wreck” for the Obama administration.

Here’s some antacid.

Over the first two days of arguments, two of the Court’s five conservative justices have expressed sympathy for key parts of the administration’s arguments. And the administration probably only needs one of their votes to fully uphold the law.

That’s the view of former acting Clinton Solicitor General Walter Dellinger, who sat down with me and a handful of other reporters after watching the arguments. Dellinger tamped down on some initial criticism’s of his successor’s performance before the court. And, crucially, he highlighted an exchange that occurred on Monday — one we broke down here — in which Chief Justice John Roberts appeared to reject the cornerstone of the challenger’s argument.

“Yesterday the Chief Justice said that it doesn’t make much sense to say that the mandate is separate from the penalty or the tax,” Dellinger said. “He seemed yesterday to have accepted the government’s argument that there’s a real choice here. If you don’t want to have health insurance that you can pay the tax penalty.”

i personally dont believe in assasinating supreme court justices, but if i did and if i had high level sniping skills

If you don’t want to have health insurance that you can pay the tax penalty.”

I need to make a poster from this phrase.

Only I think it will say,

"If you don't want to have _____________________ " then you can pay the tax penalty.

an abortion

tacos

long-form TV dramas

And also,

"If you want to have ________________________ then you can pay the tax penalty"

oh wait, I just advocated a lot of excise taxes and they aren't regressive. There I go again.

*progressive*

I'm going to be hurt by the ACA: I use lower premium catastrophic insurance, ie insurance as it was known before the 1980s when it became low-copay comprehensive coverage. I was somewhat dubious about the mandate's constitutionality, but hopefully an adverse SC outcome will make single-payer or Medicare buy-in the necessary priority (as its been for progressive Dems for decades).

The ACA with the individual mandate struck down would be a disaster for the private health insurers. The big ones (UNH, AET, HUM, WLP, CI) were all down 1.5-2% by noon, but have largely recovered by the close. This suggests the equity market digested the hearings and thinks the likelihood of an adverse SC ruling hasn't changed much.

Can't imagine the ACA surviving in any meaningful form without the mandate.

The ACA with the individual mandate struck down would be a disaster for the private health insurers. The big ones (UNH, AET, HUM, WLP, CI) were all down 1.5-2% by noon, but have largely recovered by the close. This suggests the equity market digested the hearings and thinks the likelihood of an adverse SC ruling hasn't changed much.

― I favor steatopygous buttocks and I do not dissimulate. (Sanpaku), Tuesday, March 27, 2012 4:11 PM (4 minutes ago) Bookmark Flag Post Permalink

it probably suggests nothing

stock market can't read kennedy's mind any better than anyone here

guys I can read Kennedy's mind

lithwick thinks today was political theater more so even than usual http://www.slate.com/articles/video/slate_v/2012/03/obamacare_individual_mandate_faces_hard_questions_at_the_supreme_court_.html

The size of Kennedy's brain:

http://supremecourt.c-span.org/images/Kennedy_flt.jpg

I just read this on The Volokh Conspiracy's comments section. Thoughts?

What they should have done was tax people for health care, then give refunds to people who buy insurance

Yes, that's the frustrating thing about this - had the Congress passed a 2% increase in the income tax and at the same time granted a credit in that amount for having health insurance, the results would be identical in practice and there would be no constitutional argument.

I'm not sure that it's too late though - if the mandate is struck down but deemed severable, something will have to give.

We would still have the constitutional argument, methinks.

will be interesting to see what happens if the individual mandate is thrown out and obama is reelected

for the current individual mandate, to whom does the penalty money go to?

We would still have the constitutional argument, methinks.

― Exile in lolville (Alfred, Lord Sotosyn), Tuesday, March 27, 2012 4:27 PM Bookmark Flag Post Permalink

you can think that

course saying "all Congress had to do was pass a 2% income tax increase and at the same time create a health care tax credit" is a little like saying "all the llama had to do was ride a unicycle and at the same time juggle knives"

will be interesting to see what happens if the individual mandate is thrown out and obama is reelected

― lag∞n, Tuesday, March 27, 2012 4:28 PM (28 seconds ago) Bookmark Flag Post Permalink

i think prob nothing would really happen legislatively during obamas 2nd term due to gridlock and by the time you get to the next president youd have serious cost issues to deal with but obamacare will be too entrenched to just throw out

only solution: medicare for all!!

The highlight for me:

JUSTICE SOTOMAYOR: But you're -- but the
given is that virtually everyone, absent some
intervention from above, meaning that someone's life
will be cut short in a fatal way, virtually everyone
will use health care.

MR. CLEMENT: At some point, that's right,
but all sorts of people will not, say, use health care
in the next year, which is the relevant period for the
insurance.

JUSTICE BREYER: But do you think you can,
better than the actuaries or better than the members of
Congress who worked on it, look at the 40 million people
who are not insured and say which ones next year will or
will not use, say, emergency care?
Can you do that any better than if we knew
that 40 million people were suffering, about to suffer a
contagious disease, and only 10 million would get
sick -­

MR. CLEMENT: Of course not -­

JUSTICE BREYER: -- and we don't know which?

MR. CLEMENT: Of course not, Justice Breyer,
but the point is that once Congress decides it's going
to regulate extant commerce, it is going to get all
sorts of latitude to make the right judgments about
actuarial predictions, which actuarial to rely on, which
one not to rely on.

The question that's a proper question for
this Court, though, is whether or not, for the first
time ever in our history, Congress also has the power to
compel people into commerce, because, it turns out, that
would be a very efficient things for purposes of
Congress's optimal regulation of that market.

Breyer's singsong intonations are straight out of the sonorous tenured college professor playbook and it's quite annoying.

Congress's optimal regulation of that market

Wow.

Whatever's left of me just died reading that.

"optimal"

As if "optimal" was void of political whim.

p sure he was being slightly ironical

"Yesterday the Chief Justice said that it doesn’t make much sense to say that the mandate is separate from the penalty or the tax," Dellinger said. "He seemed yesterday to have accepted the government’s argument that there’s a real choice here. If you don’t want to have health insurance that you can pay the tax penalty."

I hope this is right. I think the key here is seeing it as a tax - because Congress has broad Constitutional powers to tax.

And we should never limit those.

Well, you can limit them if you want, but it would take a Constitutional amendment.

don aren't you like a libertarian or something

What I mean is limit the scope of taxation Nate, which is what you could argue the SCOTUS would do here.

I'd rather us expand Medicare/Medicaid than expand the scope of taxation.

How is it expanding the scope of taxation? The existing scope is very broad:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

http://en.wikipedia.org/wiki/Taxing_and_Spending_Clause

Currently the federal government cannot tax people for not having health insurance, right?

That's the issue being decided. Based on my admittedly non-expert reading of the clause, I'd say they do have that power.

I mean there's nothing in there about what you can and can't tax, as long as the taxes are applied uniformly to the States.

which is why most of yesterday's argument revolved around "penalty" vs "tax."

Am I missing something then?

If SCOTUS agrees with the feds on this, expansion of taxing power will be validated.

Or maybe more succinctly, it will be ratified?

which is why most of yesterday's argument revolved around "penalty" vs "tax."

I don't really think the decision should rest on semantics though. Unless they can show there is a substantive difference between a penalty and a tax, I think the Court should uphold the law.

If SCOTUS agrees with the feds on this, expansion of taxing power will be validated

I think you're saying the Feds didn't have the power, because they didn't use it. I'm saying they had the power, but they didn't use it until now. I guess it's a matter of perspective. So I guess in your view, any qualitatively new type of tax would be unconstitutional?

The Obama administration isnt making that argument though; it's resting it in part on an interpretation of the Commerce Clause consistent with post-1937 (hell, McCullough vs Maryland) rulings.

xpost to dan

Yes, that's the impression I've been getting to. I admit to being a bit puzzled by that approach, but then again I'm not a Constitutional scholar.