Justices Question Obamacare Mandate

[Treasure Chest]

Under what constitutional power would you have the federal government create health care for all? Keep in mind, that's confiscating the labor and education of doctors, nurses, drug companies, medical technology companies and so on. That's telling them they have to produce at a level the government dictates, produce what the government dictates and for what the government dictates.

Actually, it works out quite nicely for those of us in medical technology. Meaningful Use FTW!!
The difference is that doctors are required to use an EMR that is MU certified to get their full Medicare reimbursements, but they opt to accept Medicare, it's not an obligation.

[davbrucas]

Healthcare is a privilege...not a right. The very old and the very young should have free access to healthcare...otherwise, sink or swim.

[sc281]

Healthcare is a privilege...not a right. The very old and the very young should have free access to healthcare...otherwise, sink or swim.

I agree. Neither of them can go out and earn money to pay the bill. Everyone else needs to take care of themselves and stop relying on the person next to them to ake care of themxselves AND them.

[SlowLX]

http://ppacaction.com/post/20082616645/what-happened-at-todays-oral-argument

A brief look at the hearings from a "local" conservative think tank.

Text
March 28, 2012
What Happened at Today’s Oral Argument

TODAY’S ISSUES

10 a.m. EDT: Whether the individual mandate to purchase health insurance is severable from the remainder of the law.

1 p.m. EDT: Whether the Medicaid expansion provisions amount to coercion of state funding by the federal government.

SEVERABILITY

KEY POINTS FROM THE ARGUMENT: While some justices seemed inclined to uphold the remainder of the law, others appeared open to striking the whole law down or to selectively invalidating parts of the law while leaving other provisions untouched. Justice Scalia: “My approach would say if you take the heart out of the statute, the statute’s gone. That enables Congress to – to do what it wants in – in the usual fashion. And it doesn’t inject us into the process of saying, ‘this is good, this is bad, this is good, this is bad.’” Justice Ginsburg: “[I]t’s a choice between a wrecking operation, which is what you are requesting, or a salvage job. And the more conservative approach would be salvage rather than throwing out everything.”

OUR ANALYSIS: Both parties advocate that, at a minimum, the guaranteed issue and community rating provisions should be struck down if the mandate is found unconstitutional. Because of this, it is unlikely that guaranteed issue and community rating will survive if the mandate is found unconstitutional. This will lessen the immediate likelihood of an adverse selection spiral. The remaining provisions still have the potential to drive up the costs of health care and health insurance. If the Court strikes down Titles I and II, the remaining provisions will have a much less significant impact. This is feasible considering the intent of Congress to achieve universal coverage. The individual mandate is vitally interwoven with Titles I and II of the law in the effort to provide universal coverage. As such, the Court should move to overturn at least Titles I and II in full along with the mandate.

MEDICAID

KEY POINTS FROM THE ARGUMENT: The law’s challengers received their toughest questions on the Medicaid provision. One quote from Justice Roberts provided a good summary of the states’ current predicament: “[I]sn’t [this] a consequence of how willing [states] have been since the New Deal to take the Federal government’s money? And it seems to me that they have compromised their status as independent sovereigns because they are so dependent on what the Federal government has done, they should not be surprised that the Federal government having attached the – they tied the strings, they shouldn’t be surprised if the Federal government isn’t going to start pulling them.”

OUR ANALYSIS: More than 75 years ago, in United States v. Butler, the U.S. Supreme Court warned that unless the power of the federal government to condition federal grants is checked, it could “become the instrument for total subversion of the governmental powers reserved to the individual states.” This warning has proven all too prescient. As Justice Kennedy noted at today’s argument, conditional federal grants also break down the accountability that is necessary to our democratic system. For democracy to function properly, legislators must be responsive to local preferences and the federal government must be accountable for its own policies. Conditional grants may seem helpful, but in fact they subvert state government powers, defeat legislators’ ability to represent those who elected them, and blur accountability. If the Supreme Court does not fashion real restraints on the ability of the federal government to impose conditional grants on the states, action to restore state sovereignty will have to come from states themselves learning to resist the temptation that federal funds pose.

[68RR]

Guys, your missing the key word: "COMMERCE"


The government argues that the "commerce" being regulated in this case is health care and that every person in the country, regardless of age gender or citizenship is already involved in the health care stream of commerce in that if they become ill they run either to a doctor or the emergency room, depending on the seriousness of the illness or condition. In this way the argument erects an existing stream of interstate commerce which is therefor subject to regulation by Congress. The fact that a large number of individuals chose not to participate in the financial instrument of insurance to provide economic protection, in the government's view does not alter or diminish that existing stream of commerce. If this is the commerce being regulated it follows that Congress has the power to compel the purchase of insurance as a necessary and proper method of regulating this commerce. It is a somewhat dangerous argument from the opposition point of view in that it has the shimmer of jello about it. It is difficult to argue that we don't all use health care. Similarly however we are all going to die. Should we all be compelled to purchase funeral insurance? That hypo was raised. The argument in response was that health care costs are far more catastrophic than funeral expenses.

The Petitioners argue that the real stream of commerce being regulated is the health insurance market and that you cannot compel people into this market through federal legislation and then because of its all-pervasive nature brought about by government action including the legislation under review as well as prior legislation, deem to regulate it under the Commerce Clause.

One analogy that was raised by Bryer in defense of the legislation was the creation of the Bank of the United States wherein the Commerce Clause was the Constitutional authority. This was slapped down by Petitioner's counsel when he noted that to form a parallel between the two cases, Congress in the Bank case McCollough v. Maryland would have had not only to create the Bank, but also to require every citizen to deposit all of their money there. In addition is the overlaying argument that Article X reserves to the states and the people those powers not specifically granted to the federal government. The regulation of insurance has generally and historically been reserved to the states. Scalia drove home the point that the decision as to whether to purchase insurance, with a few limited exceptions (auto and health insurance in some states) is reserved to the people under Article X.

Ginsberg made an interesting analogy to the Social Security Act, but of course that program relies upon Congress's powers of taxation, not the Commerce Clause for its authority. There seemed to be fairly clear consensus by a majority on the Court that the penalties imposed and collected by the IRS for failure to purchase insurance are not a tax, and that Congress did not rely on taxing powers to enact the legislation.

Kennedy is clearly the swing vote and while most of his questions and comments seemed to suggest that he is troubled that the law opens an entire new and expansive reach by the federal government over the lives of individuals, there is a chance he might be won over by the left in conference if they can convince him of the "existing stream of commerce" argument for health care set forth above. From what I heard that would appear to be the government's best chance to get a fifth vote. On that issue the solicitor general failed to state the argument clearly and made a very weak and confused presentation. Kagan had to take him by the hand as if to remind him what they had talked about in her office before she joined the Court.

Kennedy made one disturbing comment toward the end of oral argument in answer to his own earlier question to the Solicitor General. Originally he had asked if there was any special condition or circumstance that would militate toward allowing Congress to compel people to participate in the health insurance market and that would distinguish it as a special situation. In his later comment near the very end, and it was not in the form of a question, he seemed to be almost talking to himself, he said that he was concerned that young and healthy people who declined to participate in health insurance in large numbers might be that special circumstance and that he was a bit troubled by this. Was he saying that this is the limiting marker that could be used to distinguish this case from a wholesale application of the Commerce Clause as a grant of plenary powers to Congress? I hope not. Perhaps he was just throwing this out to his colleagues on the left in hopes of getting a few free lunches. With Kennedy you won't know and can't be sure until his opinion is in writing.

The problem with the government's concept that we all enter the stream of commerce in health care on the day we are born is that under that view we enter every stream of commerce on that day. We need clothes, we need food, we need housing, we need transportation, we need ... we need ... we need.... If this is the case Congress can compel purchases by all of us in every one of these areas, dictating the terms of purchase and the exact dimensions of the item to be bought, all of it compelled under the Commerce Clause. It seemed very obvious to the entire Court, and Ginsberg asked the question directly of the Petitioners and got an affirmative answer -- would the law be constitutional if enacted as a single payer plan under the taxing authority-- the answer yes. If this is the case Congress has a clear remedy. Of course they all know that politically this is a non-starter. You can be sure that Scalia will be hammering this home to Brother Kennedy during conference; that yes the Court should give broad deference to the acts of Congress, but only when proper process and Constitutional authority are employed. The fact that they didn't have the votes to get a single player plan doesn't change the equation that if this is the best Congress could do, it doesn't meet Constitutional muster. The fact that details can be identified that might distinguish it from other future applications of improper Congressional action doesn't change the fact that this would be bad law.

It is interesting that one of the arguments made by the Petitioners was that while Congress can compel persons to purchase insurance or pay a penalty, the real problem, and there will be millions of them, are those who default on their payments. This becomes a snake pit. Does IRS refer the matter to the Justice Department? Does it become a referral for criminal prosecution? What do you do about the millions in the underground economy, those illegally in the country. Most of these people don't file tax returns, and they are among the biggest abusers of emergency room services. Many use them as routine medical clinics, calling for ambulances in order to avoid the cost of a taxi tlo the doctor's office. This is common in the Central Valley of California, in L.A and all along the southern border, Texas, Arizona and elsewhere. These people are not going to be brought into the system. They will continue to use the same services they do now and will do so for free. According to the Petitioners this will make the legislation largely ineffective. Although it will give the federal government another large pool of money that they can siphon off and use for other purposes as they do with Social Security and Medicare funds.

None of the conservatives on the court, including Kennedy in his earlier comments seemed to be satisfied that there would be any limits left on federal powers should they uphold the law. Kennedy hammered on this asking the Solicitor General repeatedly to show him where the line would be drawn were this to happen. The government denied that this was the case, but offered no clear examples of how Congress would be prevented from applying the new power to other areas and activities. Scalia chimed in and said he could predict the next Congressional invasion would involve personal physical exercise and the mandate for everyone to join a health club. He seemed to be particularly perturbed by this. I would say that depending on Kennedy, the outcome hangs by a hair.