Place your bets: Supreme Court ruling on PPACA?

[Houngan]

I don't get that last one, but it's late and I'm tired. ;)

Is there any other example where the government can force us to directly buy a commercial product from a purely for profit company? Again, that is the power in question.

The arguments both ways in some of the arguments made by the lawyers in the cases linked in the link I posted are interesting.

Yes, health care. When you use health care, you are paying for federally-mandated care for the people who use the ER services for free. Sure it's buried inside the costs, but it's there. I like this tack better because now I'm the one on logically consistent ground. The ER mandate is clearly government forcing services from a commercial interest and I imagine there's no provision forcing the hospitals to accept all such services as a loss, so they roll it into their operating expense and pass it on to the consumer. Voila!

[Timex]

That seems kind of forced.

You aren't "buying" healthcare for other people. The providers are just being forced to provide care, and while those costs may get passed along to you, you aren't actually being forced to buy anything.

Certainly, you aren't forced to buy anything from any specific entity. And, in reality, you are not actually forced to use the healthcare system at all. There isn't any government imposed penalty for not going to some particular hospital, or any hospital at all.

There really isn't any case where the federal government currently forces private citizens to purchase a product from a private entity.

[CLWheeljack]

I guess the way to see it as others are seeing it, antlers, is like this: imagine, in real life, if tomorrow Congress passed a bill that said you had to buy a new set of solar panels for your home or you would be fined, say, $6000 this year, would you be OK with that?

Jeff, I think this is falling back into the realm of "is this good or bad policy" rather than "is this constitutional".

But regardless, the argument is really 2 questions:

1) Does congress have the right to force you to buy an arbitrary product from a private company (car, solar panel).
2) If yes, this includes health care. If no, then is healthcare a different enough good that an exception is made?

[Dan_Theman]

Just curious - your taxes often are spent on things provided by private companies, including hospitals. By paying those taxes, you are forced to purchase those services despite the lack of an itemized bill showing up in your cart. If such taxes are constitutional, it would seem a health care tax would be constituional regardless of whether the financial beneficiary is a private or public company.

Pushing aside the "good"/"bad" debate, it seems to me the only matter up for dispute (again assuming I'm not missing something, which I very likely am) is whether such an onus can be placed upon the citizen without the government handling the management of the payor/payee system.

[Houngan]

That seems kind of forced.

You aren't "buying" healthcare for other people. The providers are just being forced to provide care, and while those costs may get passed along to you, you aren't actually being forced to buy anything.

Certainly, you aren't forced to buy anything from any specific entity. And, in reality, you are not actually forced to use the healthcare system at all. There isn't any government imposed penalty for not going to some particular hospital, or any hospital at all.

There really isn't any case where the federal government currently forces private citizens to purchase a product from a private entity.

In every significant way, yes you are "forced." Health care is a right in nearly every first-world country, it's not the equivalent of choosing to buy a car when you have access to public transit. If the government forces hospitals to absorb the cost of ER visits for the poor, then you are forced to pay prices that reflect that, middleman or no. Is it a perfect analogy to the ACA? No, but it falls short by a very, very slim margin.

In fuzzier terms, the semantic difference between the ACA's mandate and the costs passed on by the ER mandate are much, much smaller than the worst-case benefits of capturing payments from the majority of those ER users as well as the preventative gains of regular health care vs. crisis health care.

[Tin Wisdom]

Just curious - your taxes often are spent on things provided by private companies, including hospitals. By paying those taxes, you are forced to purchase those services despite the lack of an itemized bill showing up in your cart. If such taxes are constitutional, it would seem a health care tax would be constitutional regardless of whether the financial beneficiary is a private or public company.

That's true, but the US government expends a VAST amount of time and energy trying to ensure that the taxpayers' cash is spent in something approaching a responsible manner. From the obsessive review of open bids, to the pile of paperwork that has to go into implementing a sole-source contract, to the months-long training that goes into being certified as a contracts officer or contract overseer, the paranoia that goes into making sure that there isn't a whiff of impropriety in a government contract with a for-profit entity can be mind-boggling.

So the way it's always been done is to give the government the money and trust that they will perform their due diligence and get the best deal possible, weighing effeciteness and cost together in a way that benefits the citizenry to the maximum extent while quashing the majority of the corruption that is almost unavoidable in such a system.

[For those reaching for the "reply" button: Please assume that you inserted your favorite $50 hammer story here to point out why it doesn't always work, then assume that we argue about it for a couple pages and that you eventually succeed in making your point in a witty manner that leaves everyone astounded by your worldliness and glib command of the language.]

Pushing aside the "good"/"bad" debate, it seems to me the only matter up for dispute (again assuming I'm not missing something, which I very likely am) is whether such an onus can be placed upon the citizen without the government handling the management of the payor/payee system.

I think that's the real question here. What happens when fly-by-night healthcare start preying on people who are convinced they'll go to jail if they don't by X or Y service? The government might be slow and inefficient, but a huge proportion of the US population has below-average intelligence (some studies put that number at around 50%).

[JeffL]

Jeff, I think this is falling back into the realm of "is this good or bad policy" rather than "is this constitutional".

But regardless, the argument is really 2 questions:

1) Does congress have the right to force you to buy an arbitrary product from a private company (car, solar panel).
2) If yes, this includes health care. If no, then is healthcare a different enough good that an exception is made?

No, the question I meant to ask is precisely what you stated in 1 and 2. Nothing to do with good policy or betterment of mankind, etc.

There are actually some interesting arguments, both ways, in the previous written opinions that are linked on the SC's web site. It is interesting and thought provoking to see the arguments made by actual legal experts.

[JeffL]

For those here who are arguing that the government clearly has the right to force citizens to purchase for profit products directly from companies, what do you then see are the limits of this power? Some here are saying that they feel that the government absolutely has the right to say "Everyone must buy an electric car each year or pay a fine of some form."

So what then are your thoughts on what the limits are, and why?

[Hemalin]

I think that's the real question here. What happens when fly-by-night healthcare start preying on people who are convinced they'll go to jail if they don't by X or Y service? The government might be slow and inefficient, but a huge proportion of the US population has below-average intelligence (some studies put that number at around 50%).

Isn't that what the exchanges are supposed to do?

[Jason McCullough]

Things the federal government currently has the constitutional power to do economically:

1. Tax 100% of your income (16th amendment).
2. Dictate prices in any and all markets (1970s wage and price controls).
3. Create any level of deflation and inflation it wants through the central bank (the Federal Reserve can double or half the money supply if it feels like it).
4. Target any level of unemployment it wants (Federal Reserve, control over purchasing, taxes, and deficits).

The federal government has explicitly had the power to do whatever to wants to the economy for nearly a century, and implicitly had it since the creation before that. It's always been perfectly constitutional to draft the entire country to fight a war, for example, driving income and GDP to zero. Even pre-New Deal Commerce Clause the federal government had the power tax imports and exports at 100% if it wanted. State governments can't do foreign-policy impacating things like draft you, but they have pretty incredible powers over their state economies.

Every functioning state on earth has extreme powers over its population in aggregate. IMHO, most of the US constitution is about protecting individuals and subgroups from special targeting; it's perfectly legal to do it to everyone.

Given that, I don't see how it makes logical sense to be upset that the government is ordering you to buy insurance from somebody on government power grounds, unless you're a libertarian who thinks the government shouldn't have any of the above powers. An insurance mandate is completely decorative by contrast.

If you're upset because you don't like the product being offered, sure, that makes sense, I just don't buy the government power angle.

[Ed Solomon]

For those here who are arguing that the government clearly has the right to force citizens to purchase for profit products directly from companies, what do you then see are the limits of this power? Some here are saying that they feel that the government absolutely has the right to say "Everyone must buy an electric car each year or pay a fine of some form."

So what then are your thoughts on what the limits are, and why?

So, tell me. How does owning an electric car effect interstate commerce?

[CF Kane]

So, tell me. How does owning an electric car effect interstate commerce?

Electric Car components are produced in multiple states and sold across state lines.

The interstate market for automobiles is directly effected by individual's purchase of electric cars. Also, the interstate market for gasoline.

Pollution effects interstate commerce, electric cars lower pollution.

That being said, I think that Mr. McCullough provides a reasonable discussion of the extent of the commerce clause, and the power of the United State government over the economy in general. The check against bad economic policy is what it has always been: If you don't like the laws, throw the bums out.

[CLWheeljack]

For those here who are arguing that the government clearly has the right to force citizens to purchase for profit products directly from companies, what do you then see are the limits of this power? Some here are saying that they feel that the government absolutely has the right to say "Everyone must buy an electric car each year or pay a fine of some form."

So what then are your thoughts on what the limits are, and why?

I think that when you change the product from "health care" to "electric car", you're inherently inserting a question of whether the specific good being considered is good policy or not. I don't mean that you're trying to skew it intentionally, I think any example is going to skew the conversation based on the biases a person feels towards that good. To discuss the point fairly in terms of constitutional powers, I think you have to discuss it in abstract economic terms.

[Jestintime]

I am a lawyer, although not a "constitutional lawyer" by practice. However, my con law answer on the bar exam was used as a "good example" response in the next year's bar prep materials, so maybe that raises my cred a bit?

A couple of thoughts:

1) The fact that the Supremes took this doesn't mean that most or all of them believe that the law is unsettled or the answer unclear. One of the reasons that the Court takes cases is to resolve divergent rulings between circuits.

2) While a lot of the back and forth in this thread (and elsewhere) is focusing on whether the government should be permitted to require individuals to make purchases from private entities, I think that the Court will spend relatively little time and ink on this. Rather, I suspect that the outcome will turn almost exclusively on whether the Supremes think that there's a sufficient nexus between the commerce clause and universal health coverage. If yes, then the fact that the govenrment is requiring compliance through individual purchases (as opposed to taxing and purchasing the services directly) will not substantially impact the constitutional analysis.

[Kolonial]

To discuss the point fairly in terms of constitutional powers, I think you have to discuss it in abstract economic terms.

That's pretty limiting, unfortunately. As others have pointed out in the thread, there's constitutional and then there's constitutional. Healthcare is unlike any other product, period. It is an absolute, guaranteed need for every citizen, for which there is no substitution. You cannot compare it to anything else as a test for constitutionality or congressional powers.

[Soapyfrog]

I am a lawyer, although not a "constitutional lawyer" by practice. However, my con law answer on the bar exam was used as a "good example" response in the next year's bar prep materials, so maybe that raises my cred a bit?

Git yer filthy informed opinion out of this here chain o wild speculation!

[ydejin]

The prevailing consensus among appellate lawyers that I know is that the ultimate opinion in this case will look like Judge Sutton's concurrence in the Sixth Circuit. Sutton was a law clerk for Justice Scalia, and they still have a close relationship. The fact that he voted to uphold the mandate does not guarantee a favorable outcome for the mandate in the Supreme Court, but the Justices may find his reasoning persuasive.

The opinion is available in full here. I think it is worth reading if you care about the issue.

Sutton's opinion starts on page 27.

Thanks for the link. I was a little worried that as a non-lawyer I was not going to be able to understand it, but was actually readable and rather interesting.

[russellmz00]

For those here who are arguing that the government clearly has the right to force citizens to purchase for profit products directly from companies, what do you then see are the limits of this power? Some here are saying that they feel that the government absolutely has the right to say "Everyone must buy an electric car each year or pay a fine of some form."

So what then are your thoughts on what the limits are, and why?

the ballot box, ie vote the bums out as mentioned above. i don't care how bad the war is going, 100% draft is stupid. i don't care how cool the chevy volt is, i want to buy a nissan sentra. i want the aca, so i'm voting obama in 2012.

also, don't you get a tax credit for buying an electric car?

[Papageno]

One thing that is being lost in all this debate on PPACA's individual mandate is that it'll only apply if you're not already covered adequately otherwise. People who have decent insurance through work or are covered by TriCare (military), for instance, aren't going to be using the exchanges.

[JeffL]

The more I read, the more convinced I am this will get past the SC and by more than 5-4. It appears to be the type of issue on which the court is more focused on the law than their individual philosophic differences, and the conservative judges in the lower courts that have approved it have used a reasoning process that I believe Roberts and Kennedy will both follow. I still predict 7-2 in favor. I'll also be downloading the arguments at the end of each day (no video, of course, but they will be releasing audio of the arguments.)

[ridge]

The Bank Act of 1933 requires banks to pay a premium to the FDIC. Something the banks hate doing. This to me tends to undermine the inactivity/activity argument. Like health care you have the activity of risk.

The court can play politics or it can let the legislature do it's job. I have a hard time believing they intend to sever or strike down the law.

[Strollen]

Yes, auto insurance.

The question you likely meant to ask is "is there any other situation where the government can force us to directly buy a commercial product from a purely for profit company with no way to opt out?"

I see auto insurance is used several times on this thread and it is not a justification for the federal government require individual to buy health insurance.

First, the federal government doesn't mandate auto insurance some states do.
More over in the vast majority of state you don't need to buy insurance all you need to do is post a bond with the state for $X of dollars show financial responsibility. At one point in California the bond was only $10,000 and I seriously considered posting in instead of purchasing insurance.

Now if ObamaCare had provision that if in lieu of buying insurance I could prove I had sufficient funds to pay for emergency care and would not be a burden to the government I think there wouldn't be a big constitutional question.

The Supreme Court is taking 3 days to hear this and the first day is devoted to simply deciding if they can rule on it before the mandates go into effect.
My wild ass guess is they rule 5-4 against mandate but decide the rest of the bill is separable.

[Kolonial]

I see auto insurance is used several times on this thread and it is not a justification for the federal government require individual to buy health insurance.

Yep, it's a bad comparison, no question.

First, the federal government doesn't mandate auto insurance some states do.

Owning a car isn't an inevitability.

More over in the vast majority of state you don't need to buy insurance all you need to do is post a bond with the state for $X of dollars show financial responsibility. At one point in California the bond was only $10,000 and I seriously considered posting in instead of purchasing insurance.

Owning a car isn't an inevitability.

Now if ObamaCare had provision that if in lieu of buying insurance I could prove I had sufficient funds to pay for emergency care and would not be a burden to the government I think there wouldn't be a big constitutional question.

Again, the comparison falls flat. There is a greater than zero chance you will not need auto insurance at some point in your life. There is zero chance of that when it comes to your health. There is simply no other product like healthcare. This is the reason congress passed the bill in the first place.

[Houngan]

Kolonial is right, but you can make the analogy work if you specify that everyone has to own a car, and everyone will have at least one catastrophic wreck in their life. Occasionally that wreck may happen in such a way that it doesn't hurt anyone else or cost any money (drive off the pier into the ocean, I guess, with the equivalent of a healthy youngster being killed outright in some sort of accident) but you would still force everyone to carry insurance because of the many times it would.

[milo]

There is simply no other product like healthcare.

The aqueduct?

[Kolonial]

The aqueduct?

You know, I heard a guy from the Cato Institute on the radio yesterday who, in response to an argument similar to the one I outlined above, said, "well, every product is different from other products." That's the kind of intellectual dishonesty we're dealing with.

[Strollen]

Again, the comparison falls flat. There is a greater than zero chance you will not need auto insurance at some point in your life. There is zero chance of that when it comes to your health. There is simply no other product like healthcare. This is the reason congress passed the bill in the first place.

That isn't even close to being true. Many of hundred of thousands if not millions of Americans die each year, who have not needed access to more than minimal health care before dying, a doctor visit every few years, a trip to the emergency room, when they broke a bone. They die of accidents, being murdered, in car crashes, or the very common unexpected stroke or heart attack. Their lives would not have be materially improved if they had health insurance, and depending on the cost could have been worse.

I can think of only one male member of my family who had any need of expensive medical care prior to turning 65. At which point they are covered by Medicare, which is a separate discussion from ObamaCare. The rest of us paid insurance, or were covered by employer insurance, or the case of my nephew gone with out. Yes my family has been lucky, but the need for health insurance for people under 65 is far from universal, just like most people would be better off without auto insurance. Health insurance benefits those who are unlucky, and/or who's behavior result in a bad health.

[Kool Moe Dee]

So...are you feeling lucky, punk?

[russellmz00]

They die of accidents, being murdered, in car crashes, or the very common unexpected stroke or heart attack. Their lives would not have be materially improved if they had health insurance, and depending on the cost could have been worse.

free preventive tests?

[Jason McCullough]

Yes my family has been lucky, but the need for health insurance for people under 65 is far from universal, just like most people would be better off without auto insurance. Health insurance benefits those who are unlucky, and/or who's behavior result in a bad health.

Well, we wouldn't want to benefit the unlucky.