JMS synopsis of the Obama Care Supreme Court Hearings..

[Lombardi's_kid_brother]

Just reading some twitter feeds, I get the sense that the court is leaning toward striking the mandating and at least seriously considering striking parts of the law directly related to the mandate. This would be a massively important decision. That's just the tea leaves though, and I'm not sure we actually have a good sense of what they're really thinking.

There are four justices that you can assume want to gut this like a fish.

There are four justices that you can assume probably want to leave it alive in some way.

I think there will be some kind of strange compromise between that second group and Justice Kennedy that leaves absolutely no one satisfied. (They should bring O'Connor out of retirement to write the decision. She was the best at writing strange, compromised decisions that leave no one satisfied).

[ABQCOWBOY]

]

That's one of several issues. No case at this level is about "one issue."

I agree' date=' but I'm not saying that it is the only issue. I'm saying, as opposed to what I understood the other poster to say, that this is the issue or one of the issues at hand.

We don't seem to be arguing about jurisdiction and standing here.

The first question is ripeness. That's important.

The next issue is whether Congress even has the right to regulate.

Then we get to the mechanism.

I have a feeling that the justices will be split on all these issues and we are going to get some kind of bizarre 4-4-1 decision.

I think we are going to get a decision here. The issue is to big and too important. I think it's going to be 5-4 against but we will see. It could go a number of different ways.

[Madison Redskin]

I really wish Sandy baby was still on the court.

[Wrong Direction]

Justice Kennedy apparently just said that we may not know the consequences of striking the mandate but not the rest of the law. That is a very scary sentence for the left.

[Larry]

Problem I see with the "just strike down the mandate" idea, is that it's necessary.

IMO, the mandate isn't the "core if the law" like it's being portrayed. BUT, . .

One of the core issues of the reform is the attempt to make insurance more portable. To encourage competition. To make it easier for consumers to compare, and to move.

And a fundamental part of THAT, is the mandate that companies must cover pre-existing conditions. remove that clause, and consumers are locked into their current providers. (And, in some cases, simply locked out of coverage entirely).

But, if you mandate coverage for pre-existing conditions, then it becomes attractive for people (at least some people) to chose to go uninsured. Because, after all, "if I come down with something, then I'll jut buy insurance then, and they'll have to cover it". (or variations on that theme. Maybe I'd buy something that covers me if I have a stroke tomorrow, but doesn't cover cancer. If I get cancer, then I'll buy cancer coverage after I have it).

[Tulane Skins Fan]

So you think the government never forces anyone to do anything (other than forcing persons sentenced to death to die)?

in any event, what provision of the Constitution authorizes Congress to levy fines against persons who fail to purchase health insurance? Also, are there any limitations on the circumstances in which the federal government can fine you if you fail to buy something they ask you to buy?

I don't know if the government ever forces anyone to do anything or not, but I don't think the government has forced anyone to buy insurance in this case. You have an option.

Its like the case (I think its called South Dakota v. Dole) in which the federal government said that only states with a 21 year old drinking age would get highway funds. South Dakota said they were being forced to raise their drinking age minimum. The SC said no, you have a choice. You dont have to get highway funds, but you can. Same thing. You don't have to get insurance, but if you do you don't pay a fine.

Let me ask this, if this was a tax credit in the reverse, would it be ok? If the law said that you get a $650 tax credit for having insurance, that you don't get if you don't have insurance, would that be constitutional?

In fact it is the argument. It is exactly the argument that the Supreme Court is considering.

I think we are agreeing that that is the argument. I said it was, and someone said it wasn't. I just disagree that there really is no choice here.

[The 12th Commandment]

I really don't understand how anybody could argue for this. The market obviously hasn't worked out the situation, health care is one of the most important and expensive needs we have. It has worked out just fine for those with the money (thankfully I'm in that category) as we have some of the best care in the world when you can afford it. Trouble is, too many can't and they wind having to go to the doctor anyway - surprise, surprise, surprise. Pretending isn't a good tool for making policy.

I am sick and tired of paying through the nose every month for all the losers that aren't responsible. We can't turn them away (nor would I support that) so they have to pay in advance, just like the rest of us. What's the problem with that? There isn't one, it's just a disingenuous political BS. Anyone not happy with the level of insurance they will get will be FREE to purchase additional coverage. Just like with medicare. Setting a minimum standard is a practical matter, not a bureaucrat deciding arbitrarily whether you get care or not, but a necessity to prevent ridiculous charges that conservatives wouldn't like. We accept bureaucratic decisions in countless aspects of our lives, why should this be different? The whole thing reeks of conservatism yet it's untenable to them.

[Bliz]

Honestly, this is just not true. You can still not choose not to buy health insurance. You just have to pay a tax, which frankly is pretty modest. Furthermore, there are all kinds of exemptions to the tax based on financial burden, etc.

Its honestly not true that anyone has been "forced" to buy health insurance. You still have a choice.

You know, I've been thinking. They could have avoided this whole mess by structuring it exactly the opposite way: Everyone is going to be taxed $X. But, if you have health insurance, the tax is waived (or you're exempt or get a credit). Clearly constitutional. Maybe not EVERYBODY goes on the rolls, but a lot more people do. And those that don't have to kick in a little extra to cover some of the costs they put on the rest of us. Done and done. Nice and simple.

*edit* darn. TSF beat me to it.

Aint that the truth.

For this reason, I want Congress to do two things:

1. Allow purchasing across state lines. This would allow all citizens the opportunity to buy all kinds of different insurance.

Isn't part of the problem here the wide disparity in what the states require of those policies? Is that a feasible solution to open markets without the feds dictating minimum coverages?

[ABQCOWBOY]

Problem I see with the "just strike down the mandate" idea, is that it's necessary.

IMO, the mandate isn't the "core if the law" like it's being portrayed. BUT, . .

One of the core issues of the reform is the attempt to make insurance more portable. To encourage competition. To make it easier for consumers to compare, and to move.

And a fundamental part of THAT, is the mandate that companies must cover pre-existing conditions. remove that clause, and consumers are locked into their current providers. (And, in some cases, simply locked out of coverage entirely).

But, if you mandate coverage for pre-existing conditions, then it becomes attractive for people (at least some people) to chose to go uninsured. Because, after all, "if I come down with something, then I'll jut buy insurance then, and they'll have to cover it". (or variations on that theme. Maybe I'd buy something that covers me if I have a stroke tomorrow, but doesn't cover cancer. If I get cancer, then I'll buy cancer coverage after I have it).

If the mandate is struck, the Law is dead. What you will have are people jumping into the program when they suffer severe illness and that will drive costs through the roof. That assumes you change the penalty to a Tax and it gets funded in Congress, which will be very, very difficult as well. If this happens, I think this thing is DOA.

---------- Post added March-28th-2012 at 10:42 AM ----------

I think we are agreeing that that is the argument. I said it was, and someone said it wasn't. I just disagree that there really is no choice here.

Augh....... OK. I miss understood your post. Yes, I thought you were saying that it was not. Agreed, there are choices but I don't think that the choices that might be left will make the Law effective. I think it probably kills it. That is just my opinion.

---------- Post added March-28th-2012 at 10:49 AM ----------

I really don't understand how anybody could argue for this. The market obviously hasn't worked out the situation, health care is one of the most important and expensive needs we have. It has worked out just fine for those with the money (thankfully I'm in that category) as we have some of the best care in the world when you can afford it. Trouble is, too many can't and they wind having to go to the doctor anyway - surprise, surprise, surprise. Pretending isn't a good tool for making policy.

I am sick and tired of paying through the nose every month for all the losers that aren't responsible. We can't turn them away (nor would I support that) so they have to pay in advance, just like the rest of us. What's the problem with that? There isn't one, it's just a disingenuous political BS. Anyone not happy with the level of insurance they will get will be FREE to purchase additional coverage. Just like with medicare. Setting a minimum standard is a practical matter, not a bureaucrat deciding arbitrarily whether you get care or not, but a necessity to prevent ridiculous charges that conservatives wouldn't like. We accept bureaucratic decisions in countless aspects of our lives, why should this be different? The whole thing reeks of conservatism yet it's untenable to them.

Please help me understand. How is what you are saying here not what we had in place before?

---------- Post added March-28th-2012 at 11:23 AM ----------

Not looking good for Obama Care in today's hearings according to this article.

http://reason.com/blog/2012/03/27/kennedy-and-roberts-raise-powerful-objec

Justice Anthony Kennedy:

“I understand that we must presume laws are constitutional,” Kennedy told Verrilli, “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 now have a heavy burden of justification to show authorization under the Constitution?” and “here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases, and that changes the relationship of the Federal Government to the individual in a very fundamental way.”

Kennedy is probably key and based on this, it does not sound as if he is convinced the Law is Constitutional.

Chief Justice John Roberts:

“once we say that there is a market and Congress can require people to participate in it...all bets are off.”

More from Roberts.............

CHIEF JUSTICE ROBERTS: Is your argument limited to insurance or means of paying for health care?

GENERAL VERRILLI: Yes. It's limited to insurance.

CHIEF JUSTICE ROBERTS: Well, now, why is that? Congress could -- once you -- once you establish that you have a market for health care, I would suppose Congress's power under the Commerce Clause meant they had a broad scope in terms of how they regulate that market. And it would be -- it would be going back to Lochner if we were put in the position of saying, no, you can use your commerce power to regulate insurance, but you can't use your commerce power to regulate this market in other ways. I think that would be a very significant intrusion by the Court into Congress's power.

Roberts is the other Justice who was thought might be open to sway but it doesn't sound like he is going to go that way either.

.

[The 12th Commandment]

Please help me understand. How is what you are saying here not what we had in place before?

For an example, my issue isn't money necessarily, it's a pre-existing condition. If I were to lose my current ability to get in the State of New Mexico plan (as a medical retiree where I pay $500/month) I wouldn't be able to get coverage. I have a chronic, incurable neurological disorder (MS) and I cost a lot of money.

To address what I wrote before, the difference is 30 million people that don't go to the doctor until it warrants a trip to the emergency room, and we pay for it. If they are all covered under one plan the amount we end paying for their earlier trips to a doctor as opposed to an emergency would be cheaper.

[ABQCOWBOY]

For an example, my issue isn't money necessarily, it's a pre-existing condition. If I were to lose my current ability to get in the State of New Mexico plan (as a medical retiree where I pay $500/month) I wouldn't be able to get coverage. I have a chronic, incurable neurological disorder (MS) and I cost a lot of money.

To address what I wrote before, the difference is 30 million people that don't go to the doctor until it warrants a trip to the emergency room, and we pay for it. If they are all covered under one plan the amount we end paying for their earlier trips to a doctor as opposed to an emergency would be cheaper.

But under the old plan, patients still got treatment for Emergency visits. You could not turn them away so that would seem to be the same. The issue of paying is the same either way. You pay now for those who would otherwise be uninsured and you payed then. That is not going to go away.

[Tulane Skins Fan]

But under the old plan, patients still got treatment for Emergency visits. You could not turn them away so that would seem to be the same. The issue of paying is the same either way. You pay now for those who would otherwise be uninsured and you payed then. That is not going to go away.

Well, if this court throws it out, we are going to see a single payer plan pass Congress as this problem gets worse, and then everyone will be taxed on health insurance and everyone will pay for it.

[Madison Redskin]

Its like the case (I think its called South Dakota v. Dole) in which the federal government said that only states with a 21 year old drinking age would get highway funds. South Dakota said they were being forced to raise their drinking age minimum. The SC said no, you have a choice. You dont have to get highway funds, but you can. Same thing. You don't have to get insurance, but if you do you don't pay a fine.

I am familiar with that case and do not believe it is relevant to this discussion. The federal government is not compelled to dole out grants to the states. If it chooses to do so, it can attach whatever conditions to such grants it so pleases. Similarly, if the government wants to hand out cash to people on the condition that they obtain health insurance, it almost certain it may lawfully do so because people do not have a right to get cash without conditions from the federal government.

However, the government is not offering cash or tax credits to people who elect to obtain health insurance. The government is saying, "Enroll or pay a fine." You might think it's a distinction without a difference, but I believe the difference is very meaningful to a discussion about the constitutionality of Obamacare.

Let me ask this, if this was a tax credit in the reverse, would it be ok? If the law said that you get a $650 tax credit for having insurance, that you don't get if you don't have insurance, would that be constitutional?

As you can probably guess by now, I think it would almost certainly be constitutional. The problem is, that's not the route Obama selected because it's extremely doubtful tax credits would sufficiently incentivize everyone to obtain coverage and the only way Obamacare works is if insurers get tens of millions of new subscribers.

[Tulane Skins Fan]

I am familiar with that case and do not believe it is relevant to this discussion. The federal government is not compelled to dole out grants to the states. If it chooses to do so, it can attach whatever conditions to such grants it so pleases. Similarly, if the government wants to hand out cash to people on the condition that they obtain health insurance, it almost certain it may lawfully do so because people do not have a right to get cash without conditions from the federal government.

However, the government is not offering cash or tax credits to people who elect to obtain health insurance. The government is saying, "Enroll or pay a fine." You might think it's a distinction without a difference, but I believe the difference is very meaningful to a discussion about the constitutionality of Obamacare.

As you can probably guess by now, I think it would almost certainly be constitutional. The problem is, that's not the route Obama selected because it's extremely doubtful tax credits would sufficiently incentivize everyone to obtain coverage and the only way Obamacare works is if insurers get tens of millions of new subscribers.

I don't see the difference. But I will agree Obama made a tactical error in not structuring it this way. He simply didn't want to say he raised anyone's taxes, and he might lose his bill because of it.

He's also stupid for pushing this thing through. He should have argued vigorously that its not ripe until the fine goes into effect... he could have another justice or two appointed by then.

---------- Post added March-28th-2012 at 01:43 PM ----------

Maybe we get to see the new tie breaking rules?

Actually, what happens in this instance is that you find the narrowest possible decision that a majority of justices agree to.

So, say you have 4 that strike the mandate as unconstitutional, 4 that says its unconstitutional, and 1 that says its not ripe. Well, the only thing you can rule is that "the law is not unconstituional yet." So, that's what would happen.

[ABQCOWBOY]

Well, if this court throws it out, we are going to see a single payer plan pass Congress as this problem gets worse, and then everyone will be taxed on health insurance and everyone will pay for it.

No. I don't see that happening at all. It will be something else.

[The 12th Commandment]

No. I don't see that happening at all. It will be something else.

We are going to pay no matter what, let's make it cheap as possible. I guess there's room to argue how you do that, but making everyone pay by law is certainly as far the government can take it. I see them taking it out of peoples checks just like my insurance is taken out of mine. No matter where that check comes from, right along with the slice they take out for income tax.

[Madison Redskin]

I don't see the difference.

I think the two are quite different and I suspect a majority of the justices (including swing vote and moderate Justice Kennedy) will agree. We shall see.

[ABQCOWBOY]

I don't see the difference. But I will agree Obama made a tactical error in not structuring it this way. He simply didn't want to say he raised anyone's taxes, and he might lose his bill because of it.

He's also stupid for pushing this thing through. He should have argued vigorously that its not ripe until the fine goes into effect... he could have another justice or two appointed by then.

---------- Post added March-28th-2012 at 01:43 PM ----------

Actually, what happens in this instance is that you find the narrowest possible decision that a majority of justices agree to.

So, say you have 4 that strike the mandate as unconstitutional, 4 that says its unconstitutional, and 1 that says its not ripe. Well, the only thing you can rule is that "the law is not unconstituional yet." So, that's what would happen.

This is interesting. Personally, I find it very hard to believe that President Obama didn't understand the ramifications of not using a Tax to craft this Law. As I recall, they tried to do a single payer Bill and lost, is that not correct? At that time, he had a super majority and could not get it passed if memory serves. I think the President knew that the only way he could get this done would be to mandate it. This is not a stupid man we are talking about here. I think he knew and gambled.

Tulane, do you not see this as a bigger issue? Do you not see this as rule of precedents that opens the door for Government to enact even more aggressive mandates in other parts of day to day life? I believe that this is the larger issue and it's the only reason this Supreme Court is struggling to find a way to salvage the Law. If it's unconstitutional, and I'm not saying it is as the decision has not been made yet, then why would it be a good idea to wait until another Justice would be appointed? Wouldn't that be the worst possible outcome?

---------- Post added March-28th-2012 at 12:08 PM ----------

We are going to pay no matter what, let's make it cheap as possible. I guess there's room to argue how you do that, but making everyone pay by law is certainly as far the government can take it. I see them taking it out of peoples checks just like my insurance is taken out of mine. No matter where that check comes from, right along with the slice they take out for income tax.

Well, the problem is that the new Obama Care is not proving to be cheaper. I believe the percentage I last saw was something like 15% more expensive then what we previously had. That's a real problem.

---------- Post added March-28th-2012 at 12:30 PM ----------

According to reports, SCOTUS is questioning these statements from 2008 asking why Mandate is sound?

It is a tad unfortunate that just days after the White House embraced the term "Obamacare" - previously regarded on the Left as a pejorative label - a majority of the nine Supreme Court justices have given strong indications they will rule it unconstitutional.

Even more ironic is that the justices, or five of them at least, look like they might force President Barack Obama back to the drawing board partly on the basis of the argument one Senator Obama made against then Senator Hillary Clinton in 2008.

http://harndenblog.dailymail.co.uk/2012/03/supreme-irony-obamacare.html

[Larry]

If the mandate is struck, the Law is dead.

You may well be right, simply because of the way things are all attached to each other. "The mandate" could be a tiny string that causes the whole thing to unravel.

Without the mandate, it's tough to mandate coverage for pre-existing conditions.

Without coverage for pre-existing conditions, then millions of people (who have pre-existing conditions) are shut out of the market.

And, without coverage for pre-existing conditions, then customers are still locked into existing coverages. They can't comparison shop. There's no competition. Anybody who attempts to change companies has to go for years with questionable coverage.

Take away the ability of people who are shut out, to get back in, and the ability of people to comparison shop and to change, and how much do you have left?

[Lombardi's_kid_brother]

No. I don't see that happening at all. It will be something else.

There really is no "something else." If the goal is that everyone is covered, there's only a few ways to do it. The individual mandate is the compromise. You can't incentivize full compliance.

And the goal has to be that everyone gets covered or all you are doing is putting band-aid on this country's healthcare problem.

[JMS]

They should let everyone but Kennedy take a few vaca days. His is the only "vote' that matters.

Actually I've hread both Roberts and Kennedy may be in play. Both are conservatives but are potentially modereate on this issue.

---------- Post added March-28th-2012 at 03:17 PM ----------

That is so yesterday....today it is a tax...err penalty....Tax penalty (throws up hands)

http://althouse.blogspot.com/2012/03/solicitor-general-argues-that-failure.html

So the issue is if it's a tax teh supreme court can hear the case today. If it's a pennelty then the supreme court would have to wait 2 years to hear the case because nobody would have standing until the mandate actually takes effect. That was the topic on day one.

---------- Post added March-28th-2012 at 03:19 PM ----------

If it's not a Tax, the Federal Government has no legal means to impose it. That would pretty much kill the entire plan. Without a means to force citizens to pay into this, the entire plan is DOA.

Nope.. the government can tax you, and can also penalize you. The issue is only important because it can potentially take away the supreme courts standing to hear the case now.

---------- Post added March-28th-2012 at 03:20 PM ----------

Are you sure Roberts and Scalia aren't in play too? Wasn't one of the surprise affirmations written by a former Scalia clerk? I honestly don't know enough about Roberts to have a feel for how he will vote.

Roberts is definitely in play. He and kennedy are the two I've heard who are potential supporters..

[Wrong Direction]

I am sick and tired of paying through the nose every month for all the losers that aren't responsible. We can't turn them away (nor would I support that) so they have to pay in advance, just like the rest of us. What's the problem with that? There isn't one, it's just a disingenuous political BS.

Myths of the Free Rider Health Care Problem

http://www.forbes.com/sites/aroy/2011/02/02/myths-of-the-free-rider-health-care-problem/

Isn't part of the problem here the wide disparity in what the states require of those policies? Is that a feasible solution to open markets without the feds dictating minimum coverages?

I'm not sure. If I were in charge, I'd let the market define the program. If we start with broad federal mandates and it fails, is there ever a way to go back? Look at Medicare costs. Totally out of alignment with expectations, yet utterly unreformable in a meaningful sense. If you start with my idea and it fails, it's easy to just add government intervention. That's always where things tend to go either way.

[JMS]

I think Kennedy tipped his hand..

You could be right. The LA Times is reporting Obamacare is on the precipase of being overturned... In general conservative viewers thought the court was going to repreal it. More liberal / moderate viewers thought otherwise. Basically you saw whatever position you entered the debate with. It's very difficult to predict what they will choose as supreme court justices are like the Chairman of the Fed, they practice trying not to say anything.

[ABQCOWBOY]

There really is no "something else." If the goal is that everyone is covered' date=' there's only a few ways to do it. The individual mandate is the compromise. You can't incentivize full compliance.

And the goal has to be that everyone gets covered or all you are doing is putting band-aid on this country's healthcare problem.[/quote']

I actually think there is something else LKB. I think that you could look to Ryan's plan as a possible solution, which is very similar to Obamacare in certain areas and has a different funding mechanism.

I am also not convinced that all people have to be covered. In President Obama's Healthcare plan, not everybody is covered. I think there is a middle ground there.

[Wrong Direction]

In general conservative viewers thought the court was going to repreal it. More liberal / moderate viewers thought otherwise. Basically you saw whatever position you entered the debate with.

In-Trade had 38% chance the mandate would be overturned before yesterday. Now it's over 60%. After the last two days, I think conservatives are much more confident that 1) the mandate will not stand and 2) major portions of the law, if not the entire law, will be overturned.