Place your bets: Supreme Court ruling on PPACA?

[JeffL]

Went back last night and re-read the transcripts from the day they argued the mandate, then listened to the audio to pick up the nuance in the voices, etc.

I'm not at all convinced (even though the "pundits" seem to be, but they have flip-flopped more than once) that the mandate will be killed. I think there is a decent chance Kennedy and Roberts will still vote for it. I won't be shocked if they don't, but I still have hope at least one of the two will vote for it.

It would have been nice if the Columbia Law Review Editor Attorney who has surely been prepping for this for months could have been able to defend it. He couldn't answer the questions that have been asked on this forum. He needed the liberal judges to jump in a couple of times to answer for him. For something that many feel is easily within the scope of the commerce act, he sounded as if he was trying to defend segregated gay hate bashing as a constitutional right. I cannot imagine how, during their dry runs and preparing, anyone decided to let him be the one to make the case. If you were going purely by his defense, it would be a slam dunk to kill it. I know the point has been made that the oral arguments aren't the deciding factor, but it had to hurt when the lead attorney defending the mandate was unable to defend it.

[Papageno]

I do think I remember hearing the Solicitor General mention once the fact that no one knows in advance when and to what extent they're going to need life-saving medical care, and that that makes it a market unlike the ones for burial or broccoli.

[Jason Townsend]

I'm not at all convinced (even though the "pundits" seem to be, but they have flip-flopped more than once) that the mandate will be killed.

Granting that I probably didn't survey the coverage as well as I should have - still less pick a set of pundits to trust - the coverage certainly seemed to swing from unwarranted certainty that the mandate would be fine to unwarranted certainty that it would be struck down.

[jeffd]

Keep in mind that the vast majority of political coverage originates with TV talking heads, who are probably some of the stupidest people on the planet. More sober minds seem surprised by the aggressiveness of the questioning of the mandate, and think that it may indicate that the odds are as high as 50-50 that it gets knocked down, but that's far from virtually certain.

Incidentally, I find that these days I really do not give a shit about Constitutionality any more. The Supreme Court's become just another partisan branch of government, only with much less legitimacy than the other branches (at least they have to face voters occasionally). Maybe there was some golden age when they were sober-minded legal theorists living in an ivory tower and crafting decisions without regard to their political preferences, but from the history I've read (overwhelmingly focused around Civil War, Great Depression, and Civil Rights movement) that's basically never been the case at all.

Famously: from what I recall of David Blight's Civil War lectures, when Justice Taney (he of the Dred Scott decision) died, a draft of a decision for a case that hadn't even yet reached the Supreme Court was found in his documents. The draft indicated that he intended to enshrine a Constitutional right to slavery into law, making it legal everywhere in the US.

[Jason Townsend]

Well, I've never been wildly attached to the US Constitution myself - magnificent document in most respects for an 18th century Republic tolerating slavery, but scarcely up to date.

Appointed, "professionalist," judiciaries certainly seem to work well in many countries, but it's hard to say what the magic formula is. Stakes that aren't so high? Less polarization, or polarization in which the judiciary is on the side of a big soggy majority (eg, strong conservatives in a liberal country howl about librul judges but most of the polity is satisfied that they're just lawyers who went to college, so, sure, they're not in favour of brutalizing criminals)?

Of course in the US you have the specific problem of a parallel legal/academic universe purpose-built to churn out conservative android lawyers, legal scholars and judges. From the conservative point of view, to counteract the liberal legal/academic conspiracy, but IRL, an unanswered, unique factional advantage and force for lopsided conservative polarization.

[Quaro]

Sorry if it's been linked, but I thought this perspective was interesting:

http://www.washingtonpost.com/blogs/...UDhS_blog.html

In terms of liberty, I think what Barnett and other opponents of the mandate are arguing is that this is a slippery slope. First you’re saying I have to buy health insurance. Then you’re saying I have to eat broccoli.

The most important limit, the one we fought the Revolutionary War for, is that the people doing this to you are the people you elect. That’s the main check. The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won’t. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won’t do because you’d vote them out of office. If they can prevent me from growing pot, can they prevent me from buying broccoli? Perhaps, but why would they if they want to be reelected? So if you ask me what the limits are, I’d say read McCulloch vs. Maryland. And reread it. And keep reading it till you understand it. The Constitution is a practical document,. it’s designed to work. And the powers are designed to be flexible in order to achieve the aims of the document.

Alternatively:

But Congress could, if it wanted to, completely vitiate economic freedom purely through the tax code. You would impose a statutory rate of 100 percent and then create deductions for the stuff Congress wants you to buy—houses, health insurance, broccoli, whatever. I don't think anyone would reasonably conclude from the fact that Congress could do that stuff that we do not in fact live in a free society in which individuals have a wide scope of choice over what to do with their selves, their time, and their money. But no level of Commerce Clause jurisprudence is going to guarantee that freedom as long as Congress has plenary authority to tax people.

http://www.slate.com/blogs/moneybox/...ng_power_.html

When writing the health care mandate, why didn't they make the penalty a tax instead, where having insurance simply exempts you from the tax? If you don't have insurance, then you're taxed to pay for that car accident you never saw coming.

[ReptileHouse]

When writing the health care mandate, why didn't they make the penalty a tax instead, where having insurance simply exempts you from the tax? If you don't have insurance, then you're taxed to pay for that car accident you never saw coming.

They likely would have lost a few votes from folks who didn't want to have to say they voted for a new tax.

[jeffd]

Also: at the time PPACA was written there was no question regarding the constitutionality of the mandate.

[JeffL]

jeffd, I assume when you say the SC is a purely biased committee, you agree that bias runs both ways, i.e. the liberals will vote liberal not matter what the law, the conservatives will vote conservative no matter what the law?

Obviously, most decisions from the SC are not 5-4; your contention is that most of the important ones are? There have been some in the not so distant past where judges have voted in a surprising direction.

And will you still hold that opinion if this is 5-4 or 6-3 in favor of the mandate?

Lastly, in terms of it being so obvious that the forced purchases are indeed within the constitutional powers, the lawyer arguing that way sure had a hard time making the case. Hell, Roberts and Kennedy made the points better than he did in a couple of comments.

[Kolonial]

jeffd, I assume when you say the SC is a purely biased committee, you agree that bias runs both ways, i.e. the liberals will vote liberal not matter what the law, the conservatives will vote conservative no matter what the law?

Not to speak too much for jeffd, but it's a bit of a stretch to go from, "living in an ivory tower and crafting decisions without regard to their political preferences," to "purely biased." What you can say is some members of this court seem to have a complete disregard for even the appearance of non-bias: Scalia going on hunting trips with Cheney while considering cases brought by the Bush administration, Clarence Thomas refusing to recuse himself from the PPACA case, etc. Obviously, I'm picking on the more conservative justices here; blame it on the liberal MSM.

Lastly, in terms of it being so obvious that the forced purchases are indeed within the constitutional powers, the lawyer arguing that way sure had a hard time making the case. Hell, Roberts and Kennedy made the points better than he did in a couple of comments.

I'm not sure what that has to do with anything. The administration being represented poorly in court doesn't necessarily negate the soundness of their arguments. Keep in mind, when the constitutionality of the mandate was first challenged at the state level, that was viewed by the legal community as a bit of a novelty, thrown against the wall. That it managed to stick and pick up as much steam as it has over two years doesn't mean it's suddenly more legitimate.

[Hazard]

The constitutionality problem was easily foreseeable at the time it was drafted. Over the last twenty years the Supreme Court has been identifying limits on the commerce clause, starting with Lopez in the 90s. From the moment the provision was written it was known that the concept of forcing people into the stream of commerce just so you can regulated them was controversial. The Commerce Clause had never been used that way before in the history of the US, and allowing it to be used in such a matter would be a dramatic expansion of the power of the federal government.

What amazes me is the sheer ignorance of people who were upset over the impact of Citizens United, but are OK with an individual mandate. If you think there are too many lobbyists, or business interests in politics now, just wait until industries realize they can use the federal government to coerce you into buying their product.

[Scuzz]

Incidentally, I find that these days I really do not give a shit about Constitutionality any more. The Supreme Court's become just another partisan branch of government, only with much less legitimacy than the other branches (at least they have to face voters occasionally). Maybe there was some golden age when they were sober-minded legal theorists living in an ivory tower and crafting decisions without regard to their political preferences, but from the history I've read (overwhelmingly focused around Civil War, Great Depression, and Civil Rights movement) that's basically never been the case at all.

When you look at many decisions over the years it seems obvious to me that the Court is just another extension of the culture, not really an all defining measure of the constitution.

[jeffd]

What Kolonial and Scuzz said basically. There's a broad spectrum between "Robots living in isolation making their decisions purely based on the objective merits of the respective arguments" and "partisan hacks." The individual justices obviously fall in different places on that spectrum (e.g., Alito and Thomas are pretty widely regarded as hacks from folks who share my POV, I don't know as much about the liberal justices so I don't know which ones conservatives might legitimately say are closer to the hack end of the spectrum), but pretending that they're going to rule based purely on the objective merits of the arguments (whatever those merits may be) is at best naive.

I've said it before and I'll say it again: almost by definition if a case is in front of the Supreme Court, there's no clear way to resolve it just by consulting the Constitution. The Supreme Court's job is to interpret the Constitution and that interpretation is colored by all sorts of things, but they mostly boil down to the ideological preferences of the respective justices. We kind of like to dress these preferences up to pretend like it's not political ideology; conservatives have "Strict constructionism" or whatever they call it that just by coincidence happens to give you outcomes conservatives like; liberals have "living document" or whatever and it's the same thing. President Obama didn't nominate Justices Kagan and Sotomayor just because he thinks they're keen legal minds; he thinks they're going to hand down decisions that he likes, which means they're going to be liberal. Likewise Pres. Bush and Justice Scalia and Chief Justice Roberts.

I don't think political bias dominates the court at all times; obviously most decisions come down with large majorities. But it's certainly there, it's always been there, and I think it's naive to pretend otherwise. If the PPACA is struck down by a 5/4 decision, that means that five conservatives decided to overturn a huge piece of legislation enacted by a giant majority in Congress (recall that even though it barely passed, that's because it barely passed a filibuster. The actual vote wasn't even close) on a technicality. Personally I don't think that's an appropriate thing for the Supreme Court to do, whenever possible it ought to defer to Congress owing to matters of legitimacy. The mandate may or may not be constitutional (obviously I think it is, and I think the weight of historical evidence falls squarely on my side here) but the simple fact is that slightly altered versions of the mandate are without a doubt Constitutional, so to strike down the PPACA on this technicality would be, IMO, a hugely illegitimate action.

Related: lately I've come around to the opinion that judges should not have lifetime terms. There's no good reason to have a guy sitting on the bench for forty years. A long term is appropriate to insulate them from the popular pressures of the day, but a lifetime term in this day and age (which is going to end up meaning a half-century or more, given the race to find ever-younger judges to nominate) is just ridiculous.

Final thought: the number of truly massively awful decisions the Supreme Court has issued, specifically on the issue of Civil Rights, makes it very hard for me to credit them as some sort of last defense of our Constitutional freedoms.

[Kolonial]

Likewise Pres. Bush and Justice Scalia and Chief Justice Roberts.

I think you meant Alito here, not Scalia.

Related: lately I've come around to the opinion that judges should not have lifetime terms. There's no good reason to have a guy sitting on the bench for forty years. A long term is appropriate to insulate them from the popular pressures of the day, but a lifetime term in this day and age (which is going to end up meaning a half-century or more, given the race to find ever-younger judges to nominate) is just ridiculous.

The judges themselves sometimes say things which indicate a similar feeling on the matter. I believe there was talk from Sandra Day O'Connor that she didn't want to retire during the Bush administration, for fear she would be replaced by a more conservative justice. If that's not a refutation of the notion of an unbiased court, I'm not sure what is.

[jeffd]

I think you meant Alito here, not Scalia.

CAUGHT IN THE ACT! I'd edit but at this time it'd make me look even sillier.

The judges themselves sometimes say things which indicate a similar feeling on the matter. I believe there was talk from Sandra Day O'Connor that she didn't want to retire during the Bush administration, for fear she would be replaced by a more conservative justice. If that's not a refutation of the notion of an unbiased court, I'm not sure what is.

Pretty much. I'm not sure how long a term would be appropriate. Twelve years maybe, with the terms staggered such that one expires every four years during the first year of a President's term (no reason to turn the seat into midterm footballs). This is a sufficiently long term to insulate justices from political pressure while also ensuring that every President gets to nominate at least one justice per Presidential term (if folks like you enough, you get to nominate maybe two justices!). You can mess with this plan however you want (sixteen year terms for example. if you think that's appropriate) but you get the general idea.

[Scuzz]

While I think I like the idea of long terms 10-15 years? I wonder if the idea of sitting on the court for an extended period doesn't in some way insure a mix of cultural and social representation. No generational conscious would control the court at any one time.

[Jason Townsend]

Appointed (aspirationally) non-partisan judiciaries, like appointed (aspirationally) non-partisan election- and electoral-district-regulating bodies do work. The difficulty is they can also not work, and depending on the context they can really not work at all.

The elephant in the room is that decades ago, conservatives decided that the "natural" political orientation of what one might call the lawyer class was excessively liberal, and set out to create an entire ecosystem of conservative legal education and scholarship, and this effort was successful. It's tricky enough appointing judges in a polarized political climate without the feeder system being comprised of on the one hand "the normal legal education and scholarship system" and on the other "the parallel conservative one that was set up because conservatives didn't trust the one that existed before."

And if you're not a conservative, that's an absurd "balance," because you're "weighing" two legal traditions, both of which nod at suprapartisan legal interests, but only one of which is a nakedly partisan legal/cultural/political project coming to fruition after years of concerted labour. The only way to see that as a balance of equivalences is if you believe the US education system is a liberal conspiracy - which of course many people do believe.

My suspicion is that elective judiciaries are bad and that short term appointments are most apt to be elective judiciaries by the back door. One could make the argument that they're more "honest," but long-term appointed judiciaries are the sort that actually "work" when there's a healthy enough political context. (Which is clearly lacking here.)

[JeffL]

If the PPACA is struck down by a 5/4 decision, that means that five conservatives decided to overturn a huge piece of legislation enacted by a giant majority in Congress (recall that even though it barely passed, that's because it barely passed a filibuster. The actual vote wasn't even close) on a technicality.

I'm not going to argue that bias of a variety of types don't color the decisions. Lots and lots written on this court and past courts and how the process works. And sometimes that bias actually ends up with surprising results, such as a conservative judge making what looks like a liberal vote because of some underlying principle they believe in. If you read about the courts, you even see very differing opinions on how to come to a conclusion, with some believing you have to synthesize a ton of other decisions and rulings and some feeling you need to more strictly look purely at the matter at hand (and everything in between.)

But it is also possible that if Kennedy and Roberts vote against the mandate and it goes down 5-4 that this is actually the "correct" decision and the 4 votes for it are purely liberal bias. BTW - what almost essentially the same laws are you thinking of that are 100% constitutional?

[Jason Townsend]

Roberts is an enigma, for all the ink that's been spilled speculating about him. We have no idea where politics and "constitutionalism" begin and end or merge seamlessly in his mind.

Kennedy predates the black-box Roberts-Sotomayor era of cheshire-cat judges, but he's less a paragon of legal impartiality than he is a wildcard. So while it's possible those two will happen to vote based on their notions of abstract law and other justices may consider factors we define as political, I think it's basically pointless to guess.

[JeffL]

Yeah, Kennedy can be the swing vote for the liberals or the conservatives. He's not easy to predict. 7 of the 9 were easy to predict, and they were making their case far more than asking questions (although I'm not sure why Clarence Thomas even bothered to show up, since he seemed disinclined to participate.) Roberts and Kennedy were the only two who asked questions and made comments on both sides of the issue.

[charmtrap]

I'm not sure why Clarence Thomas even bothered to show up, since he seemed disinclined to participate.

Thomas is a rigid thinker. He already knows where he stands and he's not going to let a little thing like persuasion or argument sway his opinion.

[JeffL]

Thomas is a rigid thinker. He already knows where he stands and he's not going to let a little thing like persuasion or argument sway his opinion.

Well, the case has been made in this thread that the arguments are irrelevant anyway, so maybe he is just being the most honest. ;)

[jeffd]

I'm not going to argue that bias of a variety of types don't color the decisions. Lots and lots written on this court and past courts and how the process works. And sometimes that bias actually ends up with surprising results, such as a conservative judge making what looks like a liberal vote because of some underlying principle they believe in. If you read about the courts, you even see very differing opinions on how to come to a conclusion, with some believing you have to synthesize a ton of other decisions and rulings and some feeling you need to more strictly look purely at the matter at hand (and everything in between.)

But it is also possible that if Kennedy and Roberts vote against the mandate and it goes down 5-4 that this is actually the "correct" decision and the 4 votes for it are purely liberal bias. BTW - what almost essentially the same laws are you thinking of that are 100% constitutional?

I was referring to the tax hike + rebate version of the mandate. Functionally identical, undisputedly Constitutional.

[jeffd]

Does anyone know by what mechanism the actual internal details of court deliberations are released? From what I understand it's all kept secret in perpetuity until a particular justice (or clerk or whatever) decides to spill the beans. I'm pretty inherently skeptical of first-person accounts like that because they're going to have some inherent limitations and bias. Is there a mechanism by which the record of the meetings, memos, etc are released (analagous to the minutes of Fed meetings being made public after I think six years?)

[JeffL]

I was referring to the tax hike + rebate version of the mandate. Functionally identical, undisputedly Constitutional.

I am trying to work through some way in which that would not be functionally equivalent. (Obviously, not politically viable.) Hmmm. So, everyone has their federal income tax increased by the amount of the punishment, say, $6000. Then when you file your taxes you get a tax credit for $6000. Challenging in some ways - how do you ensure the right amount goes to the insurance companies, and how does that function? E.g. you don't know until tax time how many people will not be able to get the rebate, and so the amount that goes to the insurance companies is not a known quantity. And I suppose there are other issues related to how much tax a person owes, etc. But I get the concept.

So you are essentially then arguing the federal government does indeed have the right to make us buy anything it decides and financially punish us if we choose not to buy it. You are making the argument that the Federal Government has the right to force every American citizen they have to buy lifetime subscriptions to Rush Limbaugh's members club, or SUVs of a particular brand, or Justin Beiber tickets, or Ann Coulter concert tickets, or oil exclusively from Exxon or Mobile, or pay a punishment fine if they refuse. Because by your argument there are no limits to what the government has the right to make us purchase and the Commerce Clause is irrelevant.

[JeffL]

Does anyone know by what mechanism the actual internal details of court deliberations are released? From what I understand it's all kept secret in perpetuity until a particular justice (or clerk or whatever) decides to spill the beans. I'm pretty inherently skeptical of first-person accounts like that because they're going to have some inherent limitations and bias. Is there a mechanism by which the record of the meetings, memos, etc are released (analagous to the minutes of Fed meetings being made public after I think six years?)

From everything I have read, the deliberations are always kept private. Remember they never meet together - they write their opinions in separate offices, share them with each other but never actually discuss and debate them between themselves in person.

[jeffd]

So you are essentially then arguing the federal government does indeed have the right to make us buy anything it decides and financially punish us if we choose not to buy it. You are making the argument that the Federal Government has the right to force every American citizen they have to buy lifetime subscriptions to Rush Limbaugh's members club, or SUVs of a particular brand, or Justin Beiber tickets, or Ann Coulter concert tickets, or oil exclusively from Exxon or Mobile, or pay a punishment fine if they refuse. Because by your argument there are no limits to what the government has the right to make us purchase and the Commerce Clause is irrelevant.

This is exactly what I am arguing.

There's no limit on Congress' ability to level taxes, nor is there a limit for Congress to offer tax exemptions and rebates. I mentioned it a couple of pages ago but it got lost in the shuffle: there is nothing (other than, like, political reality) to stop Congress from levying a 100% tax on all income and then offering rebates for all manner of zany things. That's why this Commerce Clause thing seems so ridiculous to me; Congress already has a zany amount of power to compel all sorts of behavior via building de-facto penalties for noncompliance into the tax code.

As far as the deliberations all being kept secret goes, that's pretty BS, IMO. Certainly they should remain secret for quite some time; there is value in ensuring that the judges can have frank conversations without their discussions being turned into political hay. But there is historical value in their deliberations - memos, conversations, etc - and that should all be preserved and eventually made public.

More substantively: the Supreme Court is the least democratically legitimate branch of our government. Given the power it wields, it's inexcusable that it's also the least transparent.

[Jason McCullough]

So you are essentially then arguing the federal government does indeed have the right to make us buy anything it decides and financially punish us if we choose not to buy it.

In a less extreme case than jeffd's, the government subsidizes the hell out of corn. That money comes from taxes. If you don't buy corn, you're not being reimbursed for the corn subsidy.

There's no official release process.

According to Woodward's The Brethren, the "official" process is that judges occasionally discuss it between each other, but it's mostly back and forth in memos. Most justices write outlines and the vast bulk of the argumentation lifting is done by the clerks. There's one, or maybe two "official vote" meetings if I recall correctly; they decide who writes the lead opinion in those meetings.

Unofficially, they horse-trade like small-town politicians, 2 or 3 to a room, sussing each other out about who likes what arguments, how to build a coalition for your opinion, and so on.

[ridge]

Krugman made a good point. The privatization of social security has the exact same legal framework as the proposals in health care, which we all know is a transitional band-aid.

[Hechicera]

When writing the health care mandate, why didn't they make the penalty a tax instead, where having insurance simply exempts you from the tax? If you don't have insurance, then you're taxed to pay for that car accident you never saw coming.

Answered by post below you so quoting that, but, as already noted if the mandate can not be considered a separate item from the "penalty" for the mandate then it can possibly still be considered a tax. Just a tax penalty.

Obviously right to regulate is under commerce clause, however mandate could be upheld as a tax. This has the wider implications in this and other suits with Medicare/Medicaid mandates of the states. So upholding the law under this clause makes all unfunded federal mandates of the states also now legal by precedent, and they can use it to toss or refuse to consider a lot of other things.

They likely would have lost a few votes from folks who didn't want to have to say they voted for a new tax.

True, and it also means state taxes need to go up, so is more tax/cost shifting for talking points. Programs need to be paid for somehow, or they don't work. If states don't (or can't - Hello CA!) raise their taxes to properly regulate and run the exchanges, assume they will work badly. Health Insurance is not health care.

Also: at the time PPACA was written there was no question regarding the constitutionality of the mandate.

Untrue. And I was in offices with lobbyists and talked to the health care staffer of my Congressman and my senior Senator. I assure you, it was discussed in both meetings. One was a Dem. one a Rep.

My bet is on upholding the mandate on the tax basis, as the ideologues will love the side effect on other unfunded mandates and don't understand the issues at the state level, or don't see it as a problem. Non-ideologue members may not see the trap, or just like the fact it clear a lot of the docket in one fell swoop. If that happens are you prepared to lobby that someone (likely Fed. gov.) forces the states to tax and fund regulation and administration of the products and exchanges so they are in compliance with offering actual health care via insurance and not just "a health care insurance product"? Study TRICARE.