U.S. Politics 20

[Shryke]

There is certainly at least some truth in that. The doom and gloom crowd tried to justify the ACA by making the "if current trends continue argument". Well, that argument tends to ignore outside factors that guarantee that current trends can not and will not continue indefinitely. Health care costs as a percentage of GDP cannot keep rising at the same rate, because that would eventually result in 100% of GDP going to healthcare. Which is impossible, because everyone would be dead of starvation because they weren't spending any money on food. So there is some natural ceiling for those costs, and employers no longer being able to afford coverage is one of those "natural" caps. At the point when employers aren't paying for insurance, people won't be able to afford it on their own, so either prices come down, or insurance companies and providers go out of business due to lack of customers. Supply and demand....

So your answer is to trust in the magical free market fairy to work it all out?

And the result will totally be timely and efficient and good, yes?

[Guest Raids]

Shryke - Morrison & Lopez."The Rhenquist Court turned around decades of Commerce Clause jurisprudence by limiting it's scope" is a correct con law exam test answer. It's not controversial. But then there's Gonzales, which seemingly says they like Wickard when it's part of a total regulatory scheme to control a large area of interstate commerce, as ACA clearly is, but it only works if you believe Scalia and Thomas aren't total hypocrites just because the case was about marijuana.

Might work for Kennedy though, unless he hated the line they drew in Gonzales. The commerce clause wiki page is really good.

[Shryke]

I just assumed there was no chance of getting either Scalia or his bitch Thomas's vote considering which party was against the ACA and which one was for it.

I kinda thought we all figured this was coming down to which way the wind out of Kennedy's ass was blowing.

[Former Lord of Winterfell]

So your answer is to trust in the magical free market fairy to work it all out?

And the result will totally be timely and efficient and good, yes?

No, not necessarily. I was simply pointing out that costs as a percentage of GDP cannot increase indefinitely, and that there are some natural forces that limit it. To that extent, I believe ThinkerX's point has merit, particularly since so many health care discussions here have taken the "if current trends continue" argument without ever bothering to question if that is a reasonable assumption.

How timely and efficient those natural forces will be is a separate issue. But that doesn't mean intelligent discussion should pretend those natural forces don't exist.

[Lord of Rhinos]

Interesting. So if a person shows up at a hospital with a life-threatening condition, the Doctor could just choose to not perform the life-saving operation?

Yeah, didn't think so.

I don't think you thought this through very well.

Most professionals take on duties are part of the their professional responsibility obligation. For instance, where I in private practice as an attorney, I could not choose to drop clients at will either, nor could I just represent whoever I want. You have extra duties to the public that are created by your licensing body, and you can be sued in tort (or maybe even criminal law) for a failure to live up to those professional obligations.

Not saying whether performing abortions should be one of those things, unless one is needed to save the life of the mother - in that case, if there was not another doctor available to perform the operation I would think that it would be.

Wow, I should remember to refrain from posting in this thread. Less than 24 hours and the conversation has already filled six more pages. But yes, I am saying that doctors can opt out of life saving procedures, happens all the time, but other posters have covered that already. I'm struggling with the whole emergency abortion thing, because I'm trying to come up with a situation where it'd be relevant. Ectopic pregnancies aren't viable, ever, so that wouldn't be it. Eclampsia maybe? But preferred treatment for that is delivery not abortion. I'm thinking it would have to be something like that article about the CHA that got posted earlier. Complex conditions that might be relieved by termination of the fetus, but cases like that are never going to be decided by a doctor in your typical ER. They're going to provide supportive care until the patient can be seen by a specialist.

[Ser Scot A Ellison]

Shryke,

I'm well aware of the current SCOTUS postion on Wickard. I, and many others, think Wickard is an incredible stretch and plainly wrong. I also acknowledge that only the SCOTUS can fix that error and it is in no way guaranteed to be perceived as an error by the current SCOTUS.

[Guest Raids]

I kinda thought we all figured this was coming down to which way the wind out of Kennedy's ass was blowing.

Totally. So, you're Anthony Kennedy. You've been on the Court that turned around decades of Commerce Clause jurisprudence and indicated that the economic effects test was no longer good. However, you have not yet set an upper limit on what scope-of-the-commerce-clause arguments are good. Thomas and Scalia sort of indicated that this "total regulatory scheme" thing might be okay, but it's not crystal clear.

So, it's all up to you, Anthony Kennedy, this history-making Commerce Clause case that may potentially be studied by law students and published in law reviews about for decades to come.

Are you going to take the chance to make history and write the new rule? Yes, yes you are. So, is there some way to do that and uphold the ACA? Not on the economic effects test. And, in fact, the clearest way to uphold the ACA is to say that Congress really meant to enact it under the tax power. If you are against legal activism, that would absolutely be the thing to do here. But then, you don't get to write that history-making case.

Hopefully Kennedy wants to write a new rule and put the ACA on the right side of it. But because it's so damn factually similar to Wickard, that'll be tough. What I mean is, even if he wanted to uphold the ACA, he may feel that he's prevented from doing that under any other method than the tax clause route I mentioned above because of his commitment to the fidelity of the law.

If it were me, I don't know what I'd do. I guess I'd uphold it under the tax power. But damn, it would be a tough, tough thing to pass up. And I'm a dedicated pragmatist who thinks that fixes to the clarity of the law don't justify much in regard to the greater good. Anthony Kennedy most assuredly does not feel the same way.