ACA in the Supreme Court Catch-All

Robear wrote:

The problem I see is that if the Justices are inclined to ditch the Commerce clause reasoning, they could roll back a whole boatload of things besides the ACA. The Civil Rights act is grounded in the power to regulate interstate commerce. So is the Fair Labor Standards Act of 1938, which created the minimum wage and put a limit on the work week. And the National Labor Relations Act, which prevents discrimination against union members. And the Child Labor Act. And regulation of things like interstate trucking. And putting Federal regulations regarding commerce above state ones. (This is actually a big deal - some states have tried to price-fix products for sale in their state to disadvantage products made in other states.)

How much of a power grab will Thomas and the others go for, I wonder?

That's the thing: it's only ditching Commerce clause reasoning if you first buy into the idea that inaction is the same as action. All those things you listed are clearly commercial action and clearly interstate. They're all safe unless they just flat out redefine the Commerce clause power, in which case they didn't need legally need the fear of broccoli in the first place. Maybe they'll choose this case to do it because it'll play much better in the media right now, but legally they could have done that in any Commerce clause case.

Also, this decision pretty much centers on how Kennedy votes, and I can't imagine him rolling back a near century of probably the most central of the court's rulings over that time out of the blue like that. It wouldn't just be liberal stuff like you listed, but even things like Federal drug laws that would go down with a move that radical. There's no way I see that happening.

I'm calling it 5-4 striking it down, with Kennedy writing the opinion.

Spoiler:

I'm totally guessing.

Roberts would usually write the opinion if he's on the winning side, since he's chief justice. I think...

Here's an easy solution: the individual mandate only applies to people who become active members of the health care insurance commercial market. Doesn't this basically accomplish every goal of the ACA while not regulating inactivity? If you stay on your parent's insurance as an adult--which Obamacare allows you to do--you're now a consumer of health care insurance. If your college has some kind of health care coverage you get as part of your tuition, you're now a consumer of health care insurance. If you get a job where health care coverage is part of your benefits, you're now a consumer of health care insurance.

Reading those Dahlia Lithwick pieces, I feel like if this law goes down as unconstitutional it'll be because the 'experts' like her spent too much time complaining about 'selfish libertarians' and not enough time worrying about actually getting sh*t done. I don't know--I think that's a pretty good argument that the individual mandate can be separated from the rest of the ACA. Rather than make arguments about how everyone will eventually wind up in the marketplace, just make the argument that we don't have to force every tom, dick, and Antonin to buy a third-party product. Make the argument that Congress' goals with the ACA will be accomplished precisely because everyone will eventually wind up in the marketplace, long before they become a 'problematic free rider'.

Heck, I like the idea of it--why should young people who don't have the means to go to college and neither they nor their parents get health care coverage through their jobs, why should those people be paying for anyone else's health care coverage? Shouldn't we be helping those people out let alone asking them to support someone else?

Slate did put up a piece like that; too bad it took the actual supreme court case for people to take the supreme court case seriously. I hate to say it, but the Obamacare side comes out on this one looking like the anti-gay marriage side in Phoenix Rev's thread on that issue: showing up to court thinking because one side is right and one side is wrong, it's okay to not prepare seriously. It feels like Kennedy was looking for just about anything to hang his decision on, and from what I've read of the coverage of the case, we pro-ACA people utterly failed to give him that.

Heck, I like the idea of it--why should young people who don't have the means to go to college and neither they nor their parents get health care coverage through their jobs, why should those people be paying for anyone else's health care coverage? Shouldn't we be helping those people out let alone asking them to support someone else?

Who pays to help them out? And if we opt groups out of paying into the pools, the price goes up for the rest of us. That means that more people can't afford to pay and drop out, raising the price further... This is what's called the "death spiral", and it's why the individual mandate is needed (unless, of course, you go single-payer).

Still, Obamacare has a fantastic deal for people who want to opt out - just don't pay the fine, and then when you get sick, join a plan. The IRS is not empowered to actually *do* anything if you don't pay, beyond send you letters - there is no actual penalty for not paying the fine.

Interestingly, Ryan’s plan imposes, if anything, a harsher penalty on those who don’t buy health insurance. Ryan’s tax credit is far larger than the individual mandate’s penalty, and much easier to enforce. Under Ryan’s plan, if you don’t purchase insurance, you don’t get the credit. End of story. Conversely, the Affordable Care Act doesn’t include an actual enforcement mechanism for the individual mandate. If you refuse to pay it, the Internal Revenue Service can’t throw you in jail, dock your wages or really do anything at all. This leads to one of the secrets of Obamacare: Perhaps the best deal in the bill is to pay the mandate penalty year after year and only buy insurance once you get sick. To knowingly free ride, in other words. In that world, the mandate acts as an option to buy insurance at a low price when you need it. For that reason, when health-care policy experts worry about the mandate, they don’t worry that it is too coercive. They worry it isn’t coercive enough.

The mandate is considered more effective than tax credits because people seem more inclined to take action to avoid penalties than to receive benefits. That’s worked extremely well in Massachusetts, for instance, where there’s been almost no free-rider problem at all. Although it’s not different as a matter of economics, it’s a bit different as a matter of behavioral economics. In that way, the mandate does a little more to solve the free-rider problem with a little less action from the government.

If you are worried about pragmatic approaches *at all*, if there's a scintilla of concern that government solutions are worse than free market ones, then you should be praying the ACA stays intact, because it's the best free market based fix for coverage issues you'll see in your lifetime. What will come after this will be either no change (incredibly expensive already, given the 3.5% to 4.0% increases in health care costs each year for the last decade alone) or far more draconian government intervention (single payer float your boat?). If you want the fight to be between no change and complete government control, killing the ACA is the way to go.

Robear wrote:
Heck, I like the idea of it--why should young people who don't have the means to go to college and neither they nor their parents get health care coverage through their jobs, why should those people be paying for anyone else's health care coverage? Shouldn't we be helping those people out let alone asking them to support someone else?

Who pays to help them out? And if we opt groups out of paying into the pools, the price goes up for the rest of us. That means that more people can't afford to pay and drop out, raising the price further... This is what's called the "death spiral", and it's why the individual mandate is needed (unless, of course, you go single-payer).

The "death spiral" depends on those groups being large enough to have an impact. How much of an impact will the group who:

-- never were on their parent's insurance after 18 AND

-- never got health care coverage through their college AND

--never had a job where they had health care benefit

really have? Why do you think that group is large enough to trigger the "death spiral"? Especially considering how vociferously you've argued that people will inevitably engage in commercial health care activity?

I'm aware of the concept you're talking about, but that concept doesn't depend on every single person in America paying insurance premiums. I can't possibly see how a group that small would have the impact you're talking about.

Still, Obamacare has a fantastic deal for people who want to opt out - just don't pay the fine, and then when you get sick, join a plan. The IRS is not empowered to actually *do* anything if you don't pay, beyond send you letters - there is no actual penalty for not paying the fine.

I agree it's a great deal, but what I'm talking about here is whether it's a constitutional deal. Specifically about how to give the court a way to toss the individual mandate while keeping the rest without having to worry about the "death spiral."

And aren't there provisions in the ACA for the government to subsidize the cost if people can't pay? The "death spiral" not only has to outpace the ability of people to pay, but also the ability of people to pay WITH the government subsidies and controls built into the ACA bringing down their cost.

Robear wrote:

If you are worried about pragmatic approaches *at all*, if there's a scintilla of concern that government solutions are worse than free market ones, then you should be praying the ACA stays intact, because it's the best free market based fix for coverage issues you'll see in your lifetime.

A crony-based purchase mandate and insurance subsidies is almost as far as you can get from a "free market based fix". A free market oriented fix would have one or more of these facets:

1) Removal of restrictions on buying insurance out of state
2) Removal of any benefit requirements
3) Removal of artificial restrictions on the healthcare provision market such as licensing
4) Removal of Medicare/Medicaid and associated taxes
5) Removal of the emergency care mandate
6) Removal of regulations that restrict hospital/care facility density
7) Removal of FDA bans on new medications

The "death spiral" depends on those groups being large enough to have an impact. How much of an impact will the group who:

-- never were on their parent's insurance after 18 AND

-- never got health care coverage through their college AND

--never had a job where they had health care benefit

really have? Why do you think that group is large enough to trigger the "death spiral"? Especially considering how vociferously you've argued that people will inevitably engage in commercial health care activity?

That's not the only group, it's the one you picked. My point is that it's an *example* of the problem. You want people to have coverage, but you'd like us all to pay for it if they can't. It's not the only example of groups where coverage is lacking; remember, the idea is to *add* 45 million people to coverage, and that's the number in play, about 1/7 of the US population.

Note that using health care is not the same as having insurance, and that difference is part of the expense of the uninsured. You seem to assume that participating means "paying for"; instead it means "using the services of".

I agree it's a great deal, but what I'm talking about here is whether it's a constitutional deal. Specifically about how to give the court a way to toss the individual mandate while keeping the rest without having to worry about the "death spiral."

The economic effects make the solution unworkable without a mandate, or a tax increase, or some other revenue increase. Killing the mandate would require a tax increase or a decrease in services, neither of which will fly in Congress.

And aren't there provisions in the ACA for the government to subsidize the cost if people can't pay? The "death spiral" not only has to outpace the ability of people to pay, but also the ability of people to pay WITH the government subsidies and controls built into the ACA bringing down their cost.

Yes. That's why there are so many cost-cutting measures. You don't see them reported with the same frequency but I can assure you from personal experience that the rate of fraud, waste and abuse in CMS programs is dropping like a stone, and the Quality side of the house is increasing it's efforts at a rate that's never before been seen. There's a *lot* of good being done behind the scenes.

But surely we're not on a sustainable path now. I'd rather see the changes made in an organization subject to bipartisan oversight than for the benefit of shareholders, because at least the first has a *chance* of reducing prices, or slowing growth.

A crony-based purchase mandate and insurance subsidies is almost as far as you can get from a "free market based fix". A free market oriented fix would have one or more of these facets:

1) Removal of restrictions on buying insurance out of state
2) Removal of any benefit requirements
3) Removal of artificial restrictions on the healthcare provision market such as licensing
4) Removal of Medicare/Medicaid and associated taxes
5) Removal of the emergency care mandate
6) Removal of regulations that restrict hospital/care facility density
7) Removal of FDA bans on new medications

The first one is in there. The others are still thankfully locked in the 19th century...

Robear wrote:

Roberts would usually write the opinion if he's on the winning side, since he's chief justice. I think...

As Chief Justice he gets to choose who writes the opinion, he'll have Kennedy write the opinion in order to ensure his vote.

WizKid wrote:
Robear wrote:

Roberts would usually write the opinion if he's on the winning side, since he's chief justice. I think...

As Chief Justice he gets to choose who writes the opinion, he'll have Kennedy write the opinion in order to ensure his vote.

Anyone can write an opinion, I think. Even if Kennedy's vote knocks it down, he might do so for less radical reasons than the other four, which means he might write his own opinion. It could look a lot like this:

http://en.wikipedia.org/wiki/Planned...

Robear wrote:
The "death spiral" depends on those groups being large enough to have an impact. How much of an impact will the group who:

-- never were on their parent's insurance after 18 AND

-- never got health care coverage through their college AND

--never had a job where they had health care benefit

really have? Why do you think that group is large enough to trigger the "death spiral"? Especially considering how vociferously you've argued that people will inevitably engage in commercial health care activity?

That's not the only group, it's the one you picked. My point is that it's an *example* of the problem. You want people to have coverage, but you'd like us all to pay for it if they can't. It's not the only example of groups where coverage is lacking; remember, the idea is to *add* 45 million people to coverage, and that's the number in play, about 1/7 of the US population.

Note that using health care is not the same as having insurance, and that difference is part of the expense of the uninsured. You seem to assume that participating means "paying for"; instead it means "using the services of".

No, that really is the only group, I just think you don't understand what I'm saying. Look at it this way: take the 45 million, and then eliminate anyone who has ever taken an "action" in the health care insurance market. How many people are left over?

How long will they be left over? Let's be honest: even people that don't have to sign up will. And the ones that don't, the first time they go to the doctor and she says: "well, you could get on Obamacare and pay significantly less than if you pay out of your pocket" guess what: (insurance) POOLS NOT CLOSED

The "death spiral" is a chain reaction. Some chain reactions require a critical mass. I think the number of people who are "inactive" is not high enough to form that critical mass.

I agree it's a great deal, but what I'm talking about here is whether it's a constitutional deal. Specifically about how to give the court a way to toss the individual mandate while keeping the rest without having to worry about the "death spiral."

The economic effects make the solution unworkable without a mandate, or a tax increase, or some other revenue increase. Killing the mandate would require a tax increase or a decrease in services, neither of which will fly in Congress.

It doesn't have to fly in Congress--it's already passed. I'm talking about the Supreme Court throwing away the individual mandate on the "inactive" and leaving the rest of the law in place.

And aren't there provisions in the ACA for the government to subsidize the cost if people can't pay? The "death spiral" not only has to outpace the ability of people to pay, but also the ability of people to pay WITH the government subsidies and controls built into the ACA bringing down their cost.

Yes. That's why there are so many cost-cutting measures. You don't see them reported with the same frequency but I can assure you from personal experience that the rate of fraud, waste and abuse in CMS programs is dropping like a stone, and the Quality side of the house is increasing it's efforts at a rate that's never before been seen. There's a *lot* of good being done behind the scenes.

But surely we're not on a sustainable path now. I'd rather see the changes made in an organization subject to bipartisan oversight than for the benefit of shareholders, because at least the first has a *chance* of reducing prices, or slowing growth.

That's great and I agree with it all, but (edit) I don't see what it has to do with showing what I'm saying is wrong--if anything, it makes my argument stronger.

What I was talking about is giving Justice Kennedy a way to declare the individual mandate on the "inactive" unconstitutional without having to declare the rest of the ACA unconstitutional. Is that what you're talking about?

Robear wrote:
A crony-based purchase mandate and insurance subsidies is almost as far as you can get from a "free market based fix". A free market oriented fix would have one or more of these facets:

1) Removal of restrictions on buying insurance out of state
2) Removal of any benefit requirements
3) Removal of artificial restrictions on the healthcare provision market such as licensing
4) Removal of Medicare/Medicaid and associated taxes
5) Removal of the emergency care mandate
6) Removal of regulations that restrict hospital/care facility density
7) Removal of FDA bans on new medications

The first one is in there. The others are still thankfully locked in the 19th century...

I don't know. I think there could be a thriving business in burning the bodies stacked in front of emergency rooms for fuel.

Soylent Logs are people?

No, that really is the only group, I just think you don't understand what I'm saying. Look at it this way: take the 45 million, and then eliminate anyone who has ever taken an "action" in the health care insurance market. How many people are left over?

Aren't you bouncing back and forth here? The "action" is "use of health care" of any kind, with or without insurance. That's the basis for the *legal* argument I described. If you change it, you're not talking about the same thing.

How long will they be left over? Let's be honest: even people that don't have to sign up will. And the ones that don't, the first time they go to the doctor and she says: "well, you could get on Obamacare and pay significantly less than if you pay out of your pocket" guess what: (insurance) POOLS NOT CLOSED

I'm not sure I follow that, but here's some info on the 45 million uninsured (as of 2007). But the unrestricted pools are only available under the ACA at this point. And the costs only work if everyone contributes, so I'm unsure how you get out of the circle.

The "death spiral" is a chain reaction. Some chain reactions require a critical mass. I think the number of people who are "inactive" is not high enough to form that critical mass.

Well, then, take a look at this article. That's some more detail on the costs and effects of free-riding.

It doesn't have to fly in Congress--it's already passed. I'm talking about the Supreme Court throwing away the individual mandate on the "inactive" and leaving the rest of the law in place.

It's passed with the individual mandate to pay for it. Anything else is unpalatable to Congress right now. If they have to "fix" the bill, they will dump it entirely - that's the Republican position. Without a way to pay for it, the ACA is dead. Completely. It can't be separated without raising taxes and cutting services.

What I was talking about is giving Justice Kennedy a way to declare the individual mandate on the "inactive" unconstitutional without having to declare the rest of the ACA unconstitutional. Is that what you're talking about?

Yes, but I'm not sure you get how important the individual mandate is, or how little difference there is between that and a tax. So assuming you're still puzzled - you probably won't be, so just ignore this in that case - how would you replace the funding lost, in the case you describe? How would you fund the bill without an individual mandate or tax? (And if you feel a tax is okay, how is that different from a mandate, since everyone will pay a tax regardless of insurance status?)

(And if you feel a tax is okay, how is that different from a mandate, since everyone will pay a tax regardless of insurance status?)

Because Congress explicitly has that power. It's in the Constitution. They do not have the power to compel you to enter into a contract with someone else. Full stop.

Robear wrote:
No, that really is the only group, I just think you don't understand what I'm saying. Look at it this way: take the 45 million, and then eliminate anyone who has ever taken an "action" in the health care insurance market. How many people are left over?

Aren't you bouncing back and forth here? The "action" is "use of health care" of any kind, with or without insurance. That's the basis for the *legal* argument I described. If you change it, you're not talking about the same thing.

No, the "action" I'm talking about is the "use of health care insurance." The use of health care is going to prompt people to use health care insurance: the first time someone faces signing up for Obamacare or laying out a ridiculous amount of money, they'll sign up. And that's not counting the people who haven't already become customers of health care insurance at some other point, or the people who sign up for Obamacare the first day it's available to them because they're already consuming health care but they can't afford health care insurance currently.

And the costs only work if everyone contributes, so I'm unsure how you get out of the circle.

Because that's wrong: the costs don't depend on everyone contributing. They depend on enough people contributing for long enough. Your sources are not arguing that if only 44,999,999 people sign up on the first day, the ACA's costs go into a death spiral. So let's talk about the wiggle room in the ACA's costs, and whether we can find a way to get Kennedy on board with a ruling that meets his concerns about the unconstitutionality of the individual mandate while not leading to him to decide other major parts of the ACA have to go as well.

edit: look at your one source: "This depends on what is meant by "uninsured." The Census Bureau’s long-term Survey of Income and Program Participation found that 27.6 million people were without insurance for the entire year in 2005" BANG we just dropped the number of people who can escape the individual mandate to 27.6 with that statistic alone, without even checking to see if they were insured in other years or counting how many will sign up of their own free will--from your source: "Forty percent of the uninsured are young, according to KFF. But speculation that they pass up insurance because of their good health is unjustified. KFF reports that many young people lack insurance because it’s not available to them, and people who turn down available insurance tend to be in worse health, not better, according to the Institute of Medicine."

Yes, but I'm not sure you get how important the individual mandate is, or how little difference there is between that and a tax. So assuming you're still puzzled - you probably won't be, so just ignore this in that case - how would you replace the funding lost, in the case you describe? How would you fund the bill without an individual mandate or tax? (And if you feel a tax is okay, how is that different from a mandate, since everyone will pay a tax regardless of insurance status?)

Let's leave what I feel is or is not okay aside for now because it is not relevant to my post: like I said from the beginning, I was coming up with a way for Justice Kennedy to toss the individual mandate without having to toss any major parts of the ACA. Is that not worth discussing on its own?

To put it in terms edit: we all might understand better, think of it this way: the individual mandate is still in place, it's just not universal anymore. 45 million do not have health care insurance now, so that's the group we're talking about. Then we eliminate those who have ever had any kind of health insurance past the age of 18: the mandate still applies to them, because they took "action" (like those three groups I described). Then we eliminate those who would sign up for this because they consider it a good deal. How many of that 45 million would be left?

The "individual mandate" survives, it's just no longer universal because it does not apply to those who have not taken action in the health care insurance market. However, the "individual mandate" STILL covers enough of that 45 million for the costs to work. Does that make more sense? Isn't it possible the ACA costs could work with a NEAR-universal individual mandate?

Aetius wrote:

A crony-based purchase mandate and insurance subsidies is almost as far as you can get from a "free market based fix". A free market oriented fix would have one or more of these facets:

1) Removal of restrictions on buying insurance out of state
2) Removal of any benefit requirements
3) Removal of artificial restrictions on the healthcare provision market such as licensing
4) Removal of Medicare/Medicaid and associated taxes
5) Removal of the emergency care mandate
6) Removal of regulations that restrict hospital/care facility density
7) Removal of FDA bans on new medications

In my opinion, the most important factor in a free market oriented fix would be to absolutely and irrevocably eliminate the ability or option of employers to offer health insurance plans. Ironic, I know, that I insist the free market would be improved by restricting the market, but the problem is that the broken model is so firmly entrenched.

As for the commerce clause, while you can make an argument that an uninsured person is still involved in commerce when they "consume" health care, it's a lot harder to demonstrate they are all necessarily involved in interstate commerce. Any argument that they are can similarly be applied to any area of commerce, which basically renders the commerce clause restriction moot, just as O'Connor and Thomas describe in Gonzales v Raich.

Quintin_Stone wrote:

...which basically renders the commerce clause restriction moot,

Good. It stopped being a sensible policy in about 1840 and was irrelevant throughout almost all of the 20th century. Put zombie commerce clause back in its grave, says I.

And that's sensible, but there's a proper way to change outdated clauses in the constitution and that's through amendment. Simply ignoring it erodes the rule of law and makes it more likely other aspects of the constitution get ignored.

But "interpreted into irrelevancy" means ignored.

Quintin_Stone wrote:

Simply ignoring it erodes the rule of law and makes it more likely other aspects of the constitution get ignored.

It wasn't ignored. It was just interpreted into irrelevancy because it was impossible to enforce in any consistent, reasonable way outside a pre-industrial economy. The only reason is was brought back into voque was to be used as a weapon of conservativism.

Quintin_Stone wrote:

But "interpreted into irrelevancy" means ignored.

It means it was interpreted to not apply to any cases, because virtually all human activity in the United States was held to affect, at least in some small measure, interstate commerce. Then in mid-1990s in Lopez a 5-4 court decided to resurrect the doctrine in a criminal case. It was something of a surprise to constitutional lawyers at the time.

The "individual mandate" survives, it's just no longer universal because it does not apply to those who have not taken action in the health care insurance market. However, the "individual mandate" STILL covers enough of that 45 million for the costs to work. Does that make more sense? Isn't it possible the ACA costs could work with a NEAR-universal individual mandate?

While I admire your efforts to keep the services in while removing the mandate, you make two assumptions that don't fit the case. First, the "inaction" in question is "no use of health care", not health insurance. Secondly, without everyone involved, costs go up. Could it work with a "near-universal" application? Let's assume there is no death spiral. The studies still show that every insured person's cost goes up in proportion to the amount of free riders, and that the health care cost of people who are uninsured for a period, and then get insurance is higher than if they had just had it in the first place. Isn't it better to put the cost of the decision not to have insurance back on those who make that decision?

But really, your reasoning is different enough from the actual case at hand that I don't think it applies. The whole action/inaction argument is about who is in the market for health *care*, not health insurance. Once the answer is reached - everyone - we start to look at how to most affordably provide that care to the largest number of people. And that's health insurance. From there, studies show that the free market is not good at either providing everyone coverage, or controlling costs. Thus, a good place for government to step in and either take over completely (single-payer) or regulate (ACA private provider style plans). That's the actual argument in a nutshell.

Robear wrote:
The "individual mandate" survives, it's just no longer universal because it does not apply to those who have not taken action in the health care insurance market. However, the "individual mandate" STILL covers enough of that 45 million for the costs to work. Does that make more sense? Isn't it possible the ACA costs could work with a NEAR-universal individual mandate?

While I admire your efforts to keep the services in while removing the mandate, you make two assumptions that don't fit the case. First, the "inaction" in question is "no use of health care", not health insurance. Secondly, without everyone involved, costs go up. Could it work with a "near-universal" application? Let's assume there is no death spiral. The studies still show that every insured person's cost goes up in proportion to the amount of free riders, and that the health care cost of people who are uninsured for a period, and then get insurance is higher than if they had just had it in the first place. Isn't it better to put the cost of the decision not to have insurance back on those who make that decision?

But really, your reasoning is different enough from the actual case at hand that I don't think it applies. The whole action/inaction argument is about who is in the market for health *care*, not health insurance. Once the answer is reached - everyone - we start to look at how to most affordably provide that care to the largest number of people. And that's health insurance. From there, studies show that the free market is not good at either providing everyone coverage, or controlling costs. Thus, a good place for government to step in and either take over completely (single-payer) or regulate (ACA private provider style plans). That's the actual argument in a nutshell.

My reasoning is not different enough from the case at hand, it's different enough from the arguments already made in the case at hand. Don't confuse the arguments made in support of the ACA so far with the ACA itself.

Does this sacrifice some of the ACA compared to those other arguments? Sure. On the other hand, isn't the bulk of the ACA worth keeping even if some self-employed blogger somewhere who thinks he's going to get rich with his Atlas Shrugged commentary RSS feed pays less than his fair share?

It looks like the swing vote here is Kennedy. He seems to want to uphold this, he's just a little uneasy about the action/inaction health care argument. So give him another constitutional hook he can comfortably hang his hat on: give him an action/inaction health insurance argument that will allow him to keep enough of the individual mandate in place to avoid the death spiral.

My reasoning is not different enough from the case at hand, it's different enough from the arguments already made in the case at hand. Don't confuse the arguments made in support of the ACA so far with the ACA itself.

We were discussing the legal arguments made in support of the ACA. Anything else is besides the point, because it's not going to affect the case.

Does this sacrifice some of the ACA compared to those other arguments? Sure. On the other hand, isn't the bulk of the ACA worth keeping even if some self-employed blogger somewhere who thinks he's going to get rich with his Atlas Shrugged commentary RSS feed pays less than his fair share?

It's worth keeping. How, then, will you pay for it without raising the cost of insurance for everyone? It's taxes or cuts (the mandate is essentially a tax without enforcement).

It looks like the swing vote here is Kennedy. He seems to want to uphold this, he's just a little uneasy about the action/inaction health care argument. So give him another constitutional hook he can comfortably hang his hat on: give him an action/inaction health insurance argument that will allow him to keep enough of the individual mandate in place to avoid the death spiral.

The problem is that that argument is a subset of the health care one - "people who buy insurance" is a subset of "people who use health care services". It makes no sense to argue for universal coverage - covering all "people who use health care services" - by limiting the discussion to "people who buy insurance", because people do indeed go their lives without buying insurance. But no one goes their life without using the services.

Remember, these are lawyers who are talking about this stuff. And as I said, the idea is moot, because it was not raised in the briefs or the discussions (that I know of, feel free to correct me.)

Robear wrote:
My reasoning is not different enough from the case at hand, it's different enough from the arguments already made in the case at hand. Don't confuse the arguments made in support of the ACA so far with the ACA itself.

We were discussing the legal arguments made in support of the ACA. Anything else is besides the point, because it's not going to affect the case.

Well, that's not what I was discussing in my original comment.

Does this sacrifice some of the ACA compared to those other arguments? Sure. On the other hand, isn't the bulk of the ACA worth keeping even if some self-employed blogger somewhere who thinks he's going to get rich with his Atlas Shrugged commentary RSS feed pays less than his fair share?

It's worth keeping. How, then, will you pay for it without raising the cost of insurance for everyone? It's taxes or cuts (the mandate is essentially a tax without enforcement).

Taxes. Lots of taxes. On the rich. It should have been structured that way from the beginning: make this a true social welfare program. Heck, tax Wall Street stock transaction to pay for it. From what I know, it's already got income transfer aspects built into it with subsides for low-income members of the 45 million. It should have more of that, not less.

It looks like the swing vote here is Kennedy. He seems to want to uphold this, he's just a little uneasy about the action/inaction health care argument. So give him another constitutional hook he can comfortably hang his hat on: give him an action/inaction health insurance argument that will allow him to keep enough of the individual mandate in place to avoid the death spiral.

The problem is that that argument is a subset of the health care one - "people who buy insurance" is a subset of "people who use health care services". It makes no sense to argue for universal coverage - covering all "people who use health care services" - by limiting the discussion to "people who buy insurance", because people do indeed go their lives without buying insurance. But no one goes their life without using the services.

The sense it makes it that it gets around the broccoli/inaction counter-arguments.

Remember, these are lawyers who are talking about this stuff.

Same lawyers that were talking about this being a joke until a Supreme Court Justice started talking about broccoli, and now all those lawyers are worrying about this thing going down 5-4?

And as I said, the idea is moot, because it was not raised in the briefs or the discussions (that I know of, feel free to correct me.)

I agree it's moot, but you know, if those lawyers hadn't have spend so much time laughing off the broccoli argument, maybe it would have been raised in the briefs or the discussions.

Quintin_Stone wrote:

In my opinion, the most important factor in a free market oriented fix would be to absolutely and irrevocably eliminate the ability or option of employers to offer health insurance plans. Ironic, I know, that I insist the free market would be improved by restricting the market, but the problem is that the broken model is so firmly entrenched.

Yes, I left that one out by accident as I was editing. The ban is unnecessary though. All that needs to be done is remove the tax incentives that drive and entrench it, which were first introduced due to wage and price controls during WW2. Once it is not financially advantageous for employers to offer health insurance, it'll go away pretty quickly - between the time and money spent on it by employers, and the negative aspects of employer-based health insurance for employees, it literally doesn't have a chance in the larger marketplace.

I didn't see that anyone had posted the President's comments on this issue from a couple days ago, but that particular thread has taken an even weirder turn.

Understand what the President (and the attorney general) are arguing here: essentially, any law that is passed by Congress is automatically constitutional, and the Supreme Court should not overturn any law that is passed.

President Obama wrote:

“And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint – that an unelected group of people would somehow overturn a duly constituted and passed law,” Obama said.

Emphasis is mine. This goes so much further than the administration's arguments supporting the PPACA that it is now obvious they no longer acknowledge any constitutional limits on the government at all.

And that man supposedly taught Constitutional law.

I wonder if he properly gave himself an F?

The man is actively worse than Bush. I didn't think it was possible for any Democratic candidate to be that authoritarian.