Place your bets: what do you think the Supreme Court vote will be on the health care reform bill? Will they vote to uphold the bill as is, or strike down the mandatory purchase section and leave the rest intact? Will it be a 5-4 with Kennedy being the swing vote, or a surprise 7-2?
I'm expecting a 7-2 in favor, with Roberts writing the majority opinion.
Here's an article that discusses various outcomes:
http://www.washingtonpost.com/opinio...XGS_print.html
My bet is 6-3 to uphold, Thomas, Alito and Scalia against.
I can't imagine them stripping out just the mandate, but I wouldn't mind if they did. It would hasten the day that the whole rotten health insurance system we currently have collapses and we'd finally get some political muscle behind a single-payer system. Unless conservatives can think up a worse idea than our current "free enterprise" one.
If they do strip it out I certainly think that should be the response, but there's no point in kidding ourselves about probable outcomes.Originally Posted by charmtrap
Them stripping the mandate destroys Obama's centrepiece policy without (by any means) guaranteeing the sort of congressional majority required to pass something better. Even if they (which unfortunately includes "Senators" decided to knock heads together in the Senate and put an end to the "60-votes-to-order-pizza" farce.
I'll be dumbfounded if they overturn; it'd be on the same class of naked political decision as Bush vs. Gore.
The Scalia angle where they get to throw his marijuana case back at him is hilarious.
Don't get me wrong. I don't think it would happen overnight or be an easy get, but there's a big difference between 45m people not having health insurance and 150m+ having no reliable access to health care. Those kind of numbers tend to clarify the debate.
Being that the mandate is unconstitutional they should throw out the whole thing. If that means the whole idea collapses that would be the best outcome.
It's not unconstitutional and they're not going to overturn it. But if they did, a single payer system would be inevitable.
I don't see how the federal government forcing you to buy a product from a private company is constitutional under any rational interpretation of the constitution.
Really, why can the state of Massachusetts do it if it's unconstitutional?
Because states have the ability to do many things the federal government is not allowed to do.
Whatever screws over the 99% is the way to go!
Inevitable in what time frame?
If they did throw it out, then I could see the concept dying until the democrats get solid control of the house, senate, and white house and they extended medicare -- but only be inches at a time.
Car Insurance?
Home Insurance?
Again states can force you to do such things if they are allowed by that states constitution. The federal government has different rules it needs to follow.
If medical care doesn't fall within the commerce clause, nothing does.
Forcing someone to buy a specific product from a private company or be fined by the federal government should not fall under the commerce clause.
Congress has the right to tax individuals as long as that tax does not burden a fundamental right enumerated in the Bill of Rights and/or Supreme Court interpretations of same. There is no fundamental right to be uninsured. If the SCOTUS decides the individual mandate is unconstitutional due to the mandated product being available only through private companies, it will be the beginning of the end for private insurance companies.
Those do seem quite different. You need car insurance if you wish to drive, you need home insurance if you want a loan to buy a house. You need to buy health insurance if you want to live in the US.
Saying that this is simply a poll tax, OTOH, seems pretty logical. And almost certainly within the powers of the federal government.
Although it is a poll tax that goes to a private company which is ... strange. But then again where does a lot of federal spending go? Private companies for services ... so it seems that if it were stated as a tax it would work perfectly well.
But that isn't how it was placed into law...
But what do I know? I am not a constitutional lawyer!
Yeah, while we've had this argument ad nauseum here, and a bunch of us will end up saying the same thing, this would have been a lot easier had they issued a new tax to pay for the shortfalls, etc. instead of a mandate to purchase a product. Of course, any time the government says they are going to create a new tax, that becomes a huge political hot potato.
There is no fundamental right to not have to purchase insurance just as there is no fundamental right to not have to purchase a gym membership. Insurance is a product, purchased for financial benefit, and sold purely as a product for profit. The insurance companies are not in business to help people any more than Panasonic's TV division is in business to help people. Aetna's board of directors could decide tomorrow to go out of business or switch to selling consulting services to doctors. They sell a product, purely, 100%, to make money and are no different than Curves is in selling memberships or Dish TV is selling satellite TV subscriptions.
And therein is the rub, for me. There is a line, in my non legally trained mind, between taxing me so that the nation can provide me a military defense, or a highway system, even if much of that money ends up going to private companies, and forcing me to directly purchase a product from a private, for profit company. I don't see any reason that the reasoning could not be extended to say that everyone must purchase a membership to a local gym and sign in and work out 3 times a week, because that will reduce health care costs and thus reduce the total payouts that Aetna and Blue Cross have to make and allow them to cover more people. Or that everyone must purchase a home fitness program like P90x because if we do not reduce how out of shape Americans are, our health care cost will not be contained enough for this to work. Those are private products, sold for a profit, precisely as Aetna's product is.
Just because "The program won't work if we don't force people to do this!" is not a valid legal rationale. Just as there is no constitutional or fundamental right to be uninsured, there is no fundamental or constitutional right to get health care. We do these because it is the right thing to do as a nation and hopefully will be better than it was before the law. There is no constitutional right that says my company should cover my 24 year old daughter who is living at home with me because she can't find a teaching job. I'm glad she's covered, of course, but I realize it isn't something I should expect as an entitlement.
I'm really torn on how I feel about the ruling coming up. On the one hand, I hope that it passes as I predict, 7-2. On the other hand, I think the commerce clause has been used for much more than what it was originally intended, and I fundamentally think the government should not have the power to tell me that I have to buy a new washing machine, treadmill, gym membership, or insurance product.
Now there's a thoughtful, well-put argument. Nice, Jeff.
FWIW, my only counter is two-part:
1. We've become post-total-freedom in several respects. For something as proven, obvious, and necessary as health care we just have to do something. Health insurance is what we have now, as imperfect and for-profit as it is.
2. We've already eaten the poison fruit with the ER mandate. If we're going to guarantee shitty health care for all, then why not try to do a better job at the same thing we're already doing?
How about the Militia Act of 1792?
That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years ... shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.
Were those muskets being sold by the government, or by businesses? How about the knapsacks, flints, etc?
While the Militia Act is an interesting wrinkle, it may not be applicable for technical reasons.
Further and perhaps more importantly, it has not been in effect since 1903, and could potentially be found unconstitutional today.
I look at it this way. We have a military to protect life, liberty and the pursuit of happiness not just when we are at war, but when we are at peace, because it a) provides disincentive for wars to start and b) we will not necessarily have enough warning to build weapons and train troops before the fighting starts. Likewise, we need healthcare to protect life, liberty and the pursuit of happiness not just when we are sick, but when we are healthy, because it a) can prevent illness and b) we will not necessarily have enough warning to purchase insurance and see the doctor before the real illness starts.
Arguing that you think the law is good kind of misses the point regarding constitutionality.
It's totally possible for a law to be both good AND unconstitutional. That's why we have the ability to change the constitution through amendments. However, the relative merit of a law does not factor into whether a it is constitutional or not.
Everyone's a constitutional lawyer now!
I guess we all need to be an expert on something before we can have an opinion on it here?
Nope, just as in everything else here, we all have our thoughts and opinions. As you know. ;)
But there is a logic that can be applied, whether it follows the legal logic or not. I want the health care act to be upheld, even though I argued when it was being debated that it was a watered down, weak, lobbyist driven piece of insufficient crud. But it is (hopefully, we'll only know when everything kicks in) better than what we have today. It is FAR from what we need. And my fear is that, now that the Democrats can say "Hey, we passed health care reform!" we'll never get another substantial move, because that was more than they want to go through again.
But as for the logic process, and I think like I do on scientific issues just because that is how I have been trained and how I have been living for the last 30 years or so, I don't see any technical difference between the government saying you must buy this commercial product directly that these companies are selling purely to make money off of you (and btw, they will screw you over in every way they can because making as much profit as possible is their only motivation and will screw you on health care if they can find the loopholes to do it,) because that keeps the costs down to the point that we have decided we need them to be (costs = keeping the insurance companies's profits up) and telling me I have to pay to join the local gym and sign in and work out 3 days a week because that will do even more to keep costs down to a point the insurance companies can keep their profits up because the biggest health care costs come from preventable diseases such as diabetes, heart disease, stroke, etc. that are most often from people who are out of shape. Any argument I can make for one I can make for the other. If the commerce clause says the government can make me do one, then it gives the government power to do the other.
And that, in my mind, crosses a line.
I realize everyone hates insurance companies, but you guys do understand they're basically the least profitable part of our healthcare sector, right?
The mandate doesn't exist to keep insurance companies' profits maximized, it exists to prevent a adverse selection death spiral. We've been over this like a thousand times!
Without emotion, separate keeping the insurance companies profits maximized and an adverse selection death spiral. Though neither has anything to do with government powers. The forcing of people to buy insurance from these companies is because the costs to the insurance companies if they don't get income from young healthy people and are forced to cover more people in higher risks segments will force them to raise their premiums to cover those costs and stay profitable.
Pretty much, because the cost of the risk pool skyrockets. If you have community rating and guaranteed issue, people only purchase health insurance after they get sick. This skews the risk pool all to hell, and premiums skyrocket into the stratosphere. Long-term it breaks the entire system entirely because nobody can afford the premiums any more.
It's not really about insurance profitability except in the sense that you can't expect them to operate at a loss indefinitely. When the whole healthcare reform process began, Congress made the decision to do it within the context of our existing health care structure (private for-profit insurers). There are better ways to do it, but they're all filthy socialism and in this country we can't have nice things.
Recall that it's not a total giveaway, the law requires insurers to spend 85% of collected premiums on payments to providers. Assuming the PPACA isn't blown up by the Supremes, I don't expect the insurance industry to be any more profitable than it is today. I also haven't seen any health economists indicate otherwise (though I haven't looked too hard either). Has health insurance company stock prices risen relative to the market average and their long-term trend? That would at least indicate wall street believes they're going to make out like bandits.
Oh, and as far as how the SC will rule? I have no idea. I don't much know the technical arguments (I'm not a trained lawyer) and honestly I suspect they do not much matter. The court system has been increasingly ideological over the years, the ruling is going to depend on whether or not you can get a majority willing to risk the inevitable backlash of striking the PPACA down. Incidentally, the Constitutionality of the individual mandate was never much in doubt until a Democratic president signed it into law.
Posting Permissions
Reply With Quote