Affordable Care Act at the Supreme Court

[awesome possum]

My opinion is that Al Gore should have been president, and we'd probably live in a slightly more pleasant world had that happened.

Everything else is ice cream on a shit sandwich.

[Former Lord of Winterfell]

Ap, you know what I said about reading and responding to your posts again because you were being reasonable?

I take it back.

[awesome possum]

Oh no, a guy on the internet who routinely expresses and/or defends horrible ideas and views doesn't think I'm reasonable?

Oh gods, whatever shall I do!

[Baitac]

Vehicle insurance is only mandated if you want to drive.

Got it. Just wondering how states can require it, when you may never have an accident, versus the other, when you or your famiy will very likely need healthcare more frequently than you have car accidents. The same goes for homeowner's and flood insurance. Those types of insurances to me are more onerous, as I never make a claim and they are mandated and extremely costly v. benefit. Just saying.

[Former Lord of Winterfell]

No, the constitutional distinction is NOT that you must buy car insurance only if you choose to drive.

The constitutional distinction is that car insurance, etc. are compelled by states, which, unlike the federal government, are not limited to only those powers contained in the U.S. Constitution.

[Kalbear]

FLOW, you can count me as someone who would be fine with this being constitutional or not - but would like the decision to not be made solely on party lines.

I still fail to see the reasonable argument that this is not constitutional - the government already mandates things like draft reporting or kids having to go to school or even pay taxes.

[ThinkerX]

So...if the mandate gets dumped, but the law stands, does that open the door to single payer?

[The Progressive]

Listen flow,

I'll take you wager. Wanna bet change of screenname for a year?

[Tempra]

Really? I mean, the ACA is a very easy place to draw the line because it is a case of first impression -- the first "mandate" case ever. If the Court were to start overturning established precedent of the Warren Court, the blowback would be infinitely worse. And that whole theory assumes that Roberts can see into the future and know he will have the votes to overturn all that precedent.

Sorry not being clear, but the "good point" only applied to the bolded portion of the text that I could see Roberts joining a liberal majority to right the opinon. And I agree that this is an easy case to draw a line on.

I don't think it would quite work like that. There are different theories under which the law could be upheld, and any effort on the part of Roberts to steer that opinion in a more conservative direction would simply result in him writing a concurrence rather than authoring the majority opinion (or plurality) opinion. He'd circulate his draft of a "majority" opinion, the liberals would say "I don't think so", and he's left out.

That's only true if Kennedy is fully on board with the liberal contingent. Suppose, for example, the Court decides to upholds the mandate as proper under Congress' Commerce Clause power. The four liberal justices could (but likely wouldn't) seek draft a very board opinion that would give the federal government the ability to pass laws to bring about the parade of horribles that we've heard about for the past few years. Kennedy might agree that the ACA is constitutional under current Commerce Clause jurisprudnce, but wants the decision to be limited to the facts of this case so it can't be used as precedent for future mandates. If that's the case, Kennedy would write the opinion for the majority unless Roberts to decides to join the majority. Not saying he would, but he could.

Anyway, I personally think speculation that Roberts, Scalia, or Alito may end up upholding the law is way off. I can't fathom any of them expanding Wickard to include the concept of a mandate. They generally hate Wickard, but understand that it is established precedent. A mandate, though, as an issue of first impression, is a tailor-made place to draw the line in the sand.

It's all going to come down to Kennedy, but either way, none of those four will vote to uphold the mandate. IMAO.

Isn't that all the more reason for Roberts to author the opinion if it's inevitable that the law will get upheld? He can easily draft an opinion that basically says "The ACA is constitutional....barely. Don't ever cite this opinion in future cases lest ye be laughed out of this court."

Anyways, I always thought that the mandate wouild be struck down and as I read through the transcript of the argument today, I think it is even more likely since Kennedy didn't seem too sympathetic to the Government's position.

[Guest]

Has anyone heard what powers HHS has if the mandate alone gets struck down?

One of the aspects of the bill that was not talked about all that much was how the phrase "The Secretary shall..." was in the bill hundreds of times (secretary of health and human services, that is). It may be that they don't have any powers over any aspects that could be put into place instead of a mandate, but I don't know if there really is anything. Curious to find out.

I still think the notion of an opt-out clause isn't to be dismissed. It would get most people to sign up, and it would leave people with the legal right not to be mandated in if they really didn't want to be.

[Baitac]

Isn't opting out part of this whole thing? You don't have to have medical insurance, but you'll have a 2 and a half percent tax on earnings, which is way lower than current social security taxes. I like the portability and pre-existing conditions aspects of this law. I also agree with the requirement to have insurance or pay the tax. I think that the Court can see this type of commerce as being very specific so it won't result in mandating everything as a consequence. Yes, it's a federalist issue. Sometimes the federal government needs to set a nationwide standard.

[Guest]

Isn't opting out part of this whole thing? You don't have to have medical insurance, but you'll have a 2 and a half percent tax on earnings, which is way lower than current social security taxes. I like the portability and pre-existing conditions aspects of this law. I also agree with the requirement to have insurance or pay the tax. I think that the Court can see this type of commerce as being very specific so it won't result in mandating everything as a consequence. Yes, it's a federalist issue. Sometimes the federal government needs to set a nationwide standard.

Yes - You could "opt out" by choosing to pay the penalty instead of getting insurance. But you'd still be quite possibly entitled to covered services at an ER, for example. They might try to charge you for it, or they might eat the costs (what they call "uncompensated care") and pass them on to others. And if you had to eat it, you'd quite possibly need to file for bankruptcy.

The proposed opt-out I've heard (and to be clear, I see very little chance of this ever actually being the policy) is that there is a mandate, but it's optional. It's just that in order to choose to opt out of the mandate you would have to agree to give up benefits for five years or something. So you sit there with the decision of "I hate the mandate, I want to opt out, but damn...this means if I did end up in the ER, I'd be on the hook for everything. I guess I don't hate the mandate that much."

[TrackerNeil]

So...if the mandate gets dumped, but the law stands, does that open the door to single payer?

If only the mandate is dumped, you'll see a palace revolt by the insurance companies, who will be forced to cover all comers but won't receive as many new customers as the mandate would require. The GOP really doesn't care about insuring the uninsurable, but in that scenario even they might have to take a legislative hand or else risk losing all that soft money to the Democrats.

If the entire ACA is struck down...honestly, I think health insurance reform is dead for at least a generation. Even if Democrats regain control of government, what would they do? If even a plan conceived by the Heritage Foundation and acceptable to most prominent Republicans until 2009 can't pass constitutional muster, what can? So far Medicare has survived the Supreme Court, but Republicans will never let the Dems extend that to everyone. (Hmm...one wonders why it's OK for government to force citizens to insure old people but not everyone else.)

So if the ACA is struck down I think health care costs will continue to rise, more Americans will lose their insurance, and we'll go back to the old model of about 75% of the nation with acceptable access to insurance and the other 25% out in the cold. It's a scary notion, especially to those of us who cannot buy insurance on the open market because of preexisting conditions. Republicans have no solution for this because, quite frankly, they don't care. As FLoW himself has pointed out, the party is OK with leaving the uninsured behind.

[Baitac]

@Sinister: exactly as you said. There is an alternative to the mandate, but is it worth it when you'll probably need to be seen for something or other. But it's not like people are going to jail if they don't purchase insurance.

[TrackerNeil]

The proposed opt-out I've heard (and to be clear, I see very little chance of this ever actually being the policy) is that there is a mandate, but it's optional. It's just that in order to choose to opt out of the mandate you would have to agree to give up benefits for five years or something. So you sit there with the decision of "I hate the mandate, I want to opt out, but damn...this means if I did end up in the ER, I'd be on the hook for everything. I guess I don't hate the mandate that much."

I've heard this solution as well, but the problem is this: I decide to opt out, and six months later I am diagnosed with liver cancer. In this nation I am entitled to care, even if on the public nickel, so I will be a free rider. I get to play but not to pay. It's strange that conservatives would find this state of affairs acceptable given that they grit their teeth any time someone gets a welfare check.

BTW, this is a nice primer on what the mandate actually does. When you understand the policy, it's hard to see why it is the Death of Freedom.

[Guest]

I've heard this solution as well, but the problem is this: I decide to opt out, and six months later I am diagnosed with liver cancer. In this nation I am entitled to care, even if on the public nickel, so I will be a free rider. I get to play but not to pay. It's strange that conservatives would find this state of affairs acceptable given that they grit their teeth any time someone gets a welfare check.

This is part of why I don't think it would ever be implemented. I guess that ultimately it's more of a mental exercise to point out the positive aspects of the mandate.

[ThinkerX]

If only the mandate is dumped, you'll see a palace revolt by the insurance companies, who will be forced to cover all comers but won't receive as many new customers as the mandate would require. The GOP really doesn't care about insuring the uninsurable, but in that scenario even they might have to take a legislative hand or else risk losing all that soft money to the Democrats.

As the insurance industy is collectively a bunch of worthless parasites, so what?

Having the system *really* break - get things so screwed up so that all of the fat and happy money grubbing parasites currently involved in it get a real hard knock to the jaw - might be the best way to get actual honest discussion going on what *really* matters here - curbing costs.

[WrathOfTinyKittens]

I never thought I would say this to you, Thinker, but you're way too optimistic here. Do you honestly think that the radical right would allow any sort of reasonable discussion and possible exploration of a real overhaul or single-payer system? No, absent a nationwide collapse of healthcare services (including a drastic uptick in medical bankruptcies, maybe), it won't happen. They'll literally have to see that their blood will be on the walls if they don't do it before they do.

(null)

[Ser Scot A Ellison]

Tracker,

I know exactly what the mandate is intended to do and why it is a "good" thing. It is not the mandate that disturbs me but the precident it sets for a tremendous increase in the scope and power of the Federal Government. I, for one, do not want to be forced to buy burial insurance or any other form of insurance I choose not to purchase. I don't want to be forced to sell my car and purchase a Chevy Volt. The government should not have the power to force me to purchase what it wants me to buy (after being nudged to pass such new mandates by lobbyists from various industries).

[IheartTesla]

You could make that argument about almost anything. For instance, making you pay income tax could have let the Feds down the slippery slope to handing over your first born child as collateral on future taxes....but that didnt happen. I'm sure there were some guiding principles that prevented that from happening.