Discussion: Health And Healthcare III

[dnno1]

On Monday the Supreme Court will be hearing oral arguments on the Affordable Care Act (see U.S. Department of Health and Human Services v. Florida). Unfortunately we will not be able to see the events during those arguments. Although that is the case, there was a Moot Court forum on this same case sponsored by the Peter Jennings Project. The case was heard by former and current Federal Circuit Court judges as well as a university law professor and a private practice attorney. The panel voted in favor of upholding the ACA 8 to 1 based on the arguments presented. The one Judge who was against was Third Circuit Court of Appeals Justice, Kent A Jordan. His argument was similar to the 11th Circuit Court's opinion that the penalty for not getting health insurance is just that (not a tax) and that the ability of Congress to create commerce was not in the Constitution. The other justices on the panel believed that it was the Commerce Clause that gave Congress the authority to regulate health insurance and that there was no difference between a tax and a penalty in this case (although it was not what governed their decision). The forum was around 2 hours long. I would encourage you to watch since it was very informative. Just click on the link if you want to see it.

 

[hippie_hunter]

I don't see this being an 8 to 1 decision. Right now I think it's 4-3 with Kagan, Sotomayor, Stevens, and Breyer upholding it while Thomas, Scalia, and Alito go against it. Kennedy and Roberts are the swing votes and it's going to come down to how the government argues it.

If the government makes the argument that it can force anyone to buy what the government deems necessary, then I see it being struck down. While Kennedy and Roberts believe in a broad commerce clause, they still believe in some limits to governmental power. If the government makes a compelling case that the insurance market is unique to where they were forced to make people buy health insurance, I think it can prevail. In the end, there really is no true precedent for the individual mandate and it's going to come down to who has the best argument. It also doesn't help the government that the individual mandate is extremely unpopular.

The parts of the law concerning Medicaid expansion and the exchanges will be easy for the government to defend. The states are going to have a very hard time thinking that they will have a case here.

 

[dnno1]

I don't see this being an 8 to 1 decision. Right now I think it's 4-3 with Kagan, Sotomayor, Stevens, and Breyer upholding it while Thomas, Scalia, and Alito go against it. Kennedy and Roberts are the swing votes and it's going to come down to how the government argues it.

If the government makes the argument that it can force anyone to buy what the government deems necessary, then I see it being struck down. While Kennedy and Roberts believe in a broad commerce clause, they still believe in some limits to governmental power. If the government makes a compelling case that the insurance market is unique to where they were forced to make people buy health insurance, I think it can prevail. In the end, there really is no true precedent for the individual mandate and it's going to come down to who has the best argument. It also doesn't help the government that the individual mandate is extremely unpopular.

The parts of the law concerning Medicaid expansion and the exchanges will be easy for the government to defend. The states are going to have a very hard time thinking that they will have a case here.

4+3=7. There are 9 justices on the court. Are two members going to recuse themselves? Bloomberg thinks that there are at least 4 in favor and 1 opposed with 4 undecided on this case. I think they can get 5 or 6 voting in favor.

 

[hippie_hunter]

4+3=7. There are 9 justices on the court. Are two members going to recuse themselves? Bloomberg thinks that there are at least 4 in favor and 1 opposed with 4 undecided on this case. I think they can get 5 or 6 voting in favor.

Like I said, I think that Roberts and Kennedy are the swing votes. I think it's four guaranteed to uphold it, three who are guaranteed to go against it, and two who are the ones to watch. 4 + 3 + 2 = 9. It could very well be 5 or 6 in total in favor, it just comes down to how the government argues it's case. If the government makes a good case about the individual mandate, Roberts and Kennedy would be the ones upholding it. If the government makes a case on how the Commerce Clause is unlimited along with the unpopularity of the individual mandate, Roberts and Kennedy will go against it.

And speaking of recuses, I think it would be in the best interests of the court to have Thomas and Kagan recuse themselves.

 

[dnno1]

Like I said, I think that Roberts and Kennedy are the swing votes. I think it's four guaranteed to uphold it, three who are guaranteed to go against it, and two who are the ones to watch. 4 + 3 + 2 = 9. It could very well be 5 or 6 in total in favor, it just comes down to how the government argues it's case. If the government makes a good case about the individual mandate, Roberts and Kennedy would be the ones upholding it. If the government makes a case on how the Commerce Clause is unlimited along with the unpopularity of the individual mandate, Roberts and Kennedy will go against it.

And speaking of recuses, I think it would be in the best interests of the court to have Thomas and Kagan recuse themselves.

I have to agree that the way this will be argued will be key in this case. that's why I would love to watch this (unfortunately we can't unless we go down there). From what I have been reading, there are people camping out to get in to Monday morning's session as of today.

 

[hippie_hunter]

I plan on listening to it. I can try and use it on how to defend the law in my class.

 

[kedrell]

I don't see how it can be gotten around(no matter how cleverly argued) that it's essentially fining people for existing and thus is treating the right to exist as a privilege rather than a right. Seems to fly directly in the face of that whole "Right to life, liberty and the pursuit of happiness" schtick.

 

[dnno1]

I don't see how it can be gotten around(no matter how cleverly argued) that it's essentially fining people for existing and thus is treating the right to exist as a privilege rather than a right. Seems to fly directly in the face of that whole "Right to life, liberty and the pursuit of happiness" schtick.

People get fined to exist all the time. That what we call taxes and citations. I don't think that's a real argument.

 

[hippie_hunter]

People get fined to exist all the time. That what we call taxes and citations. I don't think that's a real argument.

Calling taxes and citations fines isn't a real argument either

 

[hippie_hunter]

I don't see how it can be gotten around(no matter how cleverly argued) that it's essentially fining people for existing and thus is treating the right to exist as a privilege rather than a right. Seems to fly directly in the face of that whole "Right to life, liberty and the pursuit of happiness" schtick.

It can be argued. It's actually quite easy to tear apart the economic inactivity argument on account that unless you're Wolverine where you have a healing factor or live in Hogwarts where you can make some magical healing potion, everyone is going to have to deal with some kind of medical emergency at some point in their lives. Why should taxpayers have to deal with the burden of paying for someone?

Not saying that I support the individual mandate (in fact, I oppose it), but the pro-Obamacare side does have an argument. What this case is really about is not so much about health care and the right to life, liberty, and the pursuit of happiness, but more along the lines of the scope of governmental power. Does it have limits in regards to economic activity?

 

[kedrell]

It can be argued. It's actually quite easy to tear apart the economic inactivity argument on account that unless you're Wolverine where you have a healing factor or live in Hogwarts where you can make some magical healing potion, everyone is going to have to deal with some kind of medical emergency at some point in their lives.

True, but everyone has the right to choose how to deal with it when it eventually comes up. The one's who care about their future probably already bought insurance. The rest either don't care or can't afford it. I'm all for helping make health insurance affordable and available to anyone who wants it. But those who don't care are exercising their inalienable right as well and I see no problem with that so long as they accept the consequences. Because they still have the right to exist and not be fined or penalized for it.

Why should taxpayers have to deal with the burden of paying for someone?

They shouldn't.

 

[hippie_hunter]

True, but everyone has the right to choose how to deal with it when it eventually comes up. The one's who care about their future probably already bought insurance. The rest either don't care or can't afford it. I'm all for helping make health insurance affordable and available to anyone who wants it. But those who don't care are exercising their inalienable right as well and I see no problem with that so long as they accept the consequences. Because they still have the right to exist and not be fined or penalized for it.

Like I said, I agree with you. For those reasons you mention. But the other side has a valid argument as well. That's why I find the legal "experts" who go off saying that the mandate will be upheld or struck down to be total *******s. Especially those who say that the other side has no case.

They shouldn't.

Well, that's kind of the point of the mandate.

 

[dnno1]

Calling taxes and citations fines isn't a real argument either

Actually in this case there is no difference. The penalty is being handled by the IRS just as are the subsidies and the monies raised are being used to fund the emergency room visits by those who are uninsured. That's just like a tax and that is fair game just like it would be for a person who chooses not to buy a house.

 

[hippie_hunter]

Actually in this case there is no difference. The penalty is being handled by the IRS just as are the subsidies and the monies raised are being used to fund the emergency room visits by those who are uninsured. That's just like a tax and that is fair game just like it would be for a person who chooses not to buy a house.

Despite the fact on how the government set it up, it's blatantly obvious that this is a penalty. Even the courts have agreed on this matter.

 

[dnno1]

Despite the fact on how the government set it up, it's blatantly obvious that this is a penalty. Even the courts have agreed on this matter.

Not all of them. There is no consensus.

 

[hippie_hunter]

Not all of them. There is no consensus.

The courts that ruled on the issue that it was a tax ruled on it on technicality that they couldn't rule on what are set up as taxes. The courts were just merely following what they saw as the law. But the courts that actually took the time and ruled on the penalty have essentially stated that it's a penalty, a penalty that the government has the right to enact.

Even members of the Obama Administration have admitted that it is treated as a penalty despite the set up of it being a tax. The mere fact that the Obama Administration is arguing that the Tax Anti-Injunction Act doesn't apply here is them essentially admitting that this is not a tax.

 

[dnno1]

The courts that ruled on the issue that it was a tax ruled on it on technicality that they couldn't rule on what are set up as taxes. The courts were just merely following what they saw as the law. But the courts that actually took the time and ruled on the penalty have essentially stated that it's a penalty, a penalty that the government has the right to enact.

Even members of the Obama Administration have admitted that it is treated as a penalty despite the set up of it being a tax. The mere fact that the Obama Administration is arguing that the Tax Anti-Injunction Act doesn't apply here is them essentially admitting that this is not a tax.

The Anti-Injunction Act has nothing to do with taxes and penalties. It has to do with the Federal courts blocking State court proceedings without an act of Congress. The opponents of the ACA want that to be in play so that any state law can not be blocked by the Federal courts. The Justice Department says it doesn't apply here because this is an issue Interstate Commerce. Although initially, congressional legislators and the White House may have said (and wrote into the law) that a person not in compliance with the mandate would have to pay a fine or a penalty, the way it is strurctured is as a tax (the monies are collected by the IRS and not the DOJ or the DHHS or some other government agency). That would fall under the taxing powers of Congress granted by the Constitution. If the legislators had sold this as a tax, it would have been a lot more difficult than it was to get the law passed. I tend to agree with most of the judges from the moot court panel in that this case is more about the Interstate Commerce powers of Congress than about taxing.

 

[Matt]

I agree with H_H. The moot court case that you keep referencing dnno, seems pretty useless. Clearly there was no attempt to recreate the environment of SCOTUS in terms of personalities and leanings or it wouldn't have been 8-1.

I ultimately think that Roberts is going to vote to shoot it down with Kennedy being with swing vote. While Roberts is more flexible than Scalia, Thomas, and Alito, on this issue when you factor in public opinion of the mandate, I see Roberts landing against it. Kennedy is, as always, difficult to predict.

H_H is probably right that it will come down to the argument and whose is most compelling. Though Kennedy can be a wild card. Even if the government gives a brilliant argument that the insurance company is a unique industry that requires certain regulation due to its economic impact, there is still a chance that Kennedy will say "that argument still doesn't give the government the authority to penalize citizens for not having it." Of course, conversely, the administration can go in and claim that they have the power to make people buy whatever the hell they want and Kennedy may still say, "while I disagree with that assertion, I do think that this flies under the commerce clause." Kennedy is very hard to predict.

If I had to guess without hearing any of the arguments, I'd say the ruling will be 5-4 against a mandate. My opinion may change once we start getting reports of what was said, of course.

It'll be interesting if the mandate does get shot down, like H_H said....the rest of the law is perfectly constitutional and the ruling will reflect that. But the mandate is almost like the foundation of the law and if you get rid of it, the rest of the law will be fairly useless.

Oh well, it'll be interesting for political and legal nerds to watch, regardless of what happens. I look forward to reading the opinions, though we are probably looking at a good three or four month wait. Which raises another question: If Obamacare is shot down, what does it do for the president's re-election bid? It would come as a huge blow if his most touted piece of legislation is shot down right before his convention or in the middle of a heated re-election battle. This is why he always should've fought for single-payer. Even if it would've been a harder battle to win, there would be virtually no way to challenge it if it passed. If Obamacare fails to hold up, it will be a huge blow. At any rate it adds another fun nuance to this case.

 

[dnno1]

Some of you will be surprised at who you expected to vote against the law will actually do the opposite.

 

[hippie_hunter]

Some of you will be surprised at who you expected to vote against the law will actually do the opposite.

I really don't expect to see any surprises here:

- Kagan pretty much helped set up the legal defense of Obamacare before she became a Supreme Court Justice and argued for its constitutionality in the past.

- Sotomayor was appointed by Obama. I find it highly unlikely that Obama would appoint someone that would go against his own law.

- Breyer and Ginsburg always side with the government in regards to the Commerce Clause and the Necessary and Proper Clause. They aren't going to stop doing that.

- Thomas is probably the most anti-New Deal person in a position of power in our government. Even the Obama Administration sees this guy as a lost cause.

- I've read Scalia's opinion on Gonzales v. Raich. I am in the firm belief that he's going to go against it. In most cases regarding the Commerce Clause, Scalia has voted to limit the government's power. In regards to Gonzales v. Raich, while Scalia admits that the government has broad powers within the Commerce Clause to regulate private activity, he pretty much states that the intent of the Controlled Substances Act is about obliterating a particular market within the United States. There is nothing in Gonzales v. Raich that compels someone to buy something and that is the key component as to why I think that Scalia won't uphold the mandate. Asides from one case, Scalia has consistently voted to limit the government's power in regards to the Commerce Clause.

- Alito is a definite vote against the individual mandate. They call him "Scalito" for a reason. Scalito aside, Alito has had a history of being associated with various libertarian organizations in the past and has stated that the government does not have "carte blanche." The defense of the law by the government in regards to the limits the government would have if the mandate is upheld have been mediocre at best.

The ones to watch and listen to are Roberts and Kennedy. The rest are irrelevant and will produce no surprises.

 

[hippie_hunter]

I agree with H_H. The moot court case that you keep referencing dnno, seems pretty useless. Clearly there was no attempt to recreate the environment of SCOTUS in terms of personalities and leanings or it wouldn't have been 8-1.

I agree. Most legal experts at the beginning completely pushed aside the seriousness of the legal challenge against Obamacare. Most legal experts still believe that it will be upheld.

But the view that this is becoming a toss-up is becoming more and more prevalent. Even my constitutional law professor stated that he once thought that the challengers had no case until more recently where he read the decisions that struck down the mandate and now sees it as a complete toss-up that comes down to who will have the best argument.

I ultimately think that Roberts is going to vote to shoot it down with Kennedy being with swing vote. While Roberts is more flexible than Scalia, Thomas, and Alito, on this issue when you factor in public opinion of the mandate, I see Roberts landing against it. Kennedy is, as always, difficult to predict.

If Kennedy upholds the mandate, I can see Roberts upholding it so that the Supreme Court won't look partisan and ideological.

The fact though is that Roberts believes in a broad commerce clause, but he believes in the limits of the Federal government as well. He is also a man who is so concerned with the image of the Supreme Court and wanting it to look legitimate, he will also most likely be the one who takes the 2010 Midterm Elections results into account (in which the public rejected the individual mandate), polls (which still show the rest of the individual mandate to be very unpopular), and referendums that reject the individual mandate (which was rejected by very large margins in all states but Colorado, even in environments that should have been favorable to the Democrats on this issue like Ohio).

H_H is probably right that it will come down to the argument and whose is most compelling. Though Kennedy can be a wild card. Even if the government gives a brilliant argument that the insurance company is a unique industry that requires certain regulation due to its economic impact, there is still a chance that Kennedy will say "that argument still doesn't give the government the authority to penalize citizens for not having it." Of course, conversely, the administration can go in and claim that they have the power to make people buy whatever the hell they want and Kennedy may still say, "while I disagree with that assertion, I do think that this flies under the commerce clause." Kennedy is very hard to predict.

If the government makes a compelling case on the insurance industry being unique due to the economic impact, I can see Kennedy upholding the mandate. If the government makes the argument that they can go in and claim that they have the power to make people buy what they see as necessary, there is no way in hell Kennedy is going to go for that one.

It's not so much Kennedy being hard to predict, but more along the lines of whether or not the government puts up a good argument.

It'll be interesting if the mandate does get shot down, like H_H said....the rest of the law is perfectly constitutional and the ruling will reflect that. But the mandate is almost like the foundation of the law and if you get rid of it, the rest of the law will be fairly useless.

Even without the mandate, things like the Medicaid expansion and the health exchanges can go on. And I don't see how they will be found unconstitutional.

 

[hippie_hunter]

The Anti-Injunction Act has nothing to do with taxes and penalties. It has to do with the Federal courts blocking State court proceedings without an act of Congress. The opponents of the ACA want that to be in play so that any state law can not be blocked by the Federal courts. The Justice Department says it doesn't apply here because this is an issue Interstate Commerce. Although initially, congressional legislators and the White House may have said (and wrote into the law) that a person not in compliance with the mandate would have to pay a fine or a penalty, the way it is strurctured is as a tax (the monies are collected by the IRS and not the DOJ or the DHHS or some other government agency). That would fall under the taxing powers of Congress granted by the Constitution. If the legislators had sold this as a tax, it would have been a lot more difficult than it was to get the law passed. I tend to agree with most of the judges from the moot court panel in that this case is more about the Interstate Commerce powers of Congress than about taxing.

You're talking about the wrong Anti-Injunction Act. The Anti-Injunction Act in question is the Tax Anti-Injunction Act of 1867 which states that a tax must be collected first before challenging it in court.

Anyways, the arguments were heard today over this issue and it's clear that the Supreme Court is going to see this as a penalty not a tax by an unanimously and that the Tax Anti-Injunction Act does not apply.

And things to note:

- Justice Alito appears to be not going along with the government, he finds himself perplexed that the government today is arguing that the penalty is not a tax and yet tomorrow will be arguing that it is a tax.

- Justice Roberts obviously did not buy Attorney General Gregory Katsas, who is arguing for the states, the mandate is separate from the penalty, saying that why would someone ever implement a command without a punishment for not following it.

- Solicitor General Donald Verilli, who is arguing for the government was corrected by the liberal justices in regards to calling the penalty a tax.

 

[dnno1]

I don't have a link to the audio, but here is a transcript of today's oral arguments.

 

[dnno1]

You're talking about the wrong Anti-Injunction Act. The Anti-Injunction Act in question is the Tax Anti-Injunction Act of 1867 which states that a tax must be collected first before challenging it in court.

Anyways, the arguments were heard today over this issue and it's clear that the Supreme Court is going to see this as a penalty not a tax by an unanimously and that the Tax Anti-Injunction Act does not apply.

And things to note:

- Justice Alito appears to be not going along with the government, he finds himself perplexed that the government today is arguing that the penalty is not a tax and yet tomorrow will be arguing that it is a tax.

- Solicitor General Donald Verilli was corrected by the liberal justices in regards to calling the penalty a tax.

It's titled the Tax Injunction Act (or at least that was what the justices and solicitors refereed it as in today's arguments).

 

[dnno1]

I don't have a link to the audio, but here is a transcript of today's oral arguments.

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Here is the audio of Monday's oral arguments.