Affordable Care Act at the Supreme Court

[Former Lord of Winterfell]

I don't get it. If Wickard is bad law why do Supreme Court justices keep using it? Wouldn't that Gonzales case have been the best time to say, "yes, grow your weed on your own farm. Its disgusting we are arresting you for doing so. And we think Wickard was sh*t."

There are a lot of folks who wanted that. The problem is that there are so many subsequent laws and regs already on the book that were justified by Wickard, that you might have complete chaos if you tossed that decision. That's one reason why I thought this thing was going down. Because a "mandate" was a question of first impression for the Court, it could invalidate the mandate and limit Wickard without touching any of the already existing legal edifice built on Wickard.

[Former Lord of Winterfell]

I'm pretty sure Citizens United has already assured several chucklefucks on the SCOTUS a place in the history books.

When McCain Feingold was passed, Bush didn't veto it because a lot of constitutional scholars thought it was unconstitutional, and that the COurt would strike it down. The fact that it didn't happen shocked a lot of people.

You may not like the result of Citizens United, and it may be unpopular on a political level, but it was not a wacky legal decision.

[Shryke]

When McCain Feingold was passed, Bush didn't veto it because a lot of constitutional scholars thought it was unconstitutional, and that the COurt would strike it down. The fact that it didn't happen shocked a lot of people.

You may not like the result of Citizens United, and it may be unpopular on a political level, but it was not a wacky legal decision.

I didn't say which history books. :P

But hey, I figure Kennedy's opinion on that case has to go down in legal history as one of the silliest opinions ever written.

[Guest Raidne]

However this comes out, supporters of the concept should (but most won't) blame the Democratic leadership for the abysmal job they did considering the legal issues. There were a bunch of ways around this, starting with the whole mandate v. tax question. There were rumblings before this passed about the constitutional issue, and there's enough lawyers up there who should have realized this was not a frivolous question. And they could have addressed severability as well by organizing the bill into severable components.

I am forced to agree. You really don't want to draft a bill that raises the decade's most interesting legal question. Even more so, though, I don't get why the government is making the arguments it is making right now, and I will hold the administration responsible for that.

I think Kennedy is dead set on severability, the more I think about it. How bad do you think the fuckmess of a plurality decision will be?

[lokisnow]

http://www.washingtonpost.com/blogs/ezra-klein/post/amar-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/2012/03/28/gIQARJUDhS_blog.html#pagebreak

ARA: As you know, a lot of this is a frame game, On whose premises are you debating? He’s trying to answer Barnett and Paul Clement’s question, which is jury rigged to attack this law. He should have said the limits are the ones in the Constitution. That this is an easy case because it’s interstate commerce. That the limits are that the issue at hand is truly an interstate spillover and genuinely commercial, and the means used to regulate are not intrinsically improper. And this law remains within those limits.

I genuinely wonder if this would case have been a slam dunk if Kagan were still the Soliciter General and someone else was on the bench. Verelli seems damn near incompetent.

[Shryke]

The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that. A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They could not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself.

Congress’s capacity to react in a sensible way also came into some question, particularly from Justice Scalia and, in a way, from Justice Anthony M. Kennedy, both of whom seemed to harbor doubts that the lawmakers would be up to the task of working out a new health care law if this one failed, either totally or partially. Scalia noted the problems in the filibuster-prone Senate. Kennedy wondered whether expecting Congress to perform was a reference to “the real Congress or a hypothetical Congress.”

http://www.scotusblog.com/2012/03/argument-recap-a-lift-for-the-mandate/

It goes on further and such. Seemed interesting.

[IheartTesla]

There are a lot of folks who wanted that. The problem is that there are so many subsequent laws and regs already on the book that were justified by Wickard, that you might have complete chaos if you tossed that decision. That's one reason why I thought this thing was going down. Because a "mandate" was a question of first impression for the Court, it could invalidate the mandate and limit Wickard without touching any of the already existing legal edifice built on Wickard.

I have decided I don't want to know how legal sausage is made.

To be fair to Scalia (slightly) and others, I know that SC justices are loath to completely overturn pre-existing decisions. I don't know if they are being collegial and gracious towards previous justices, but that's just the way it is. So the way the law changes in the US legal system is slow and laborious and we have to wait decades before real justice is seen.

A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress.

Again, all these pragmatic ways of arriving at decisions...tsk tsk tsk.

[Guest Raidne]

You're right, you don't.

I don't agree with the analysis Shryke posted - they joked about that but the worry was about legislating from the bench.

[Former Lord of Winterfell]

Again, all these pragmatic ways of arriving at decisions...tsk tsk tsk.

Actually, that's not really the issue. The specific issue being addressed is what the Court should do with the rest of the bill if it finds the individual mandate to be unconstitutional. One argument is that it is not the responsibility of the Court, nor its area of expertise, to go page by page through a 2700 page bill and try to figure out what can be "saved", and what can't. That the Court isn't in the business of deciding how to balance different legislative interests, or to unravel what compromises may have been made among different members of Congress and the White House to get enough votes to pass the bill. In other words, a bill with a bunch of stuff stricken out because it is unconstitutional is not the bill Congress voted for. It is a different piece of legislation, and passing or amending legislation is the role of Congress, not the Courts.

So, it's really a "pragmatic" view that legislating should be left to legislatures, and the Court should limit itself to either a thumbs up or a thumbs down on the whole thing.

ETA: In other words, I'm agreeing with Raidne on this.

[Former Lord of Winterfell]

I think Kennedy is dead set on severability, the more I think about it. How bad do you think the fuckmess of a plurality decision will be?

I really don't know. My initial thought last fall was that severing was not practical, and I think I'm coming back around to that again. The thing is that the way decisions are drafted leans against it. As you know, drafts get circulated and then justices basically sign on with the one they like. I think the more you commit the concept of severability to paper, and try to get specific both in the technical aspects of carving stuff out, and in constructing a consistent legal theory for doing so, the more a written opinion supporting severance will look untenable.

I guess what I'm saying is that it will be so difficult to write a clear, convincing decision on severance that Kennedy will ultimately decide it can't be done. I mean, I think drafting the opinion on the mandate would be fun, but trying to draft one that preserves only part of the law would be a real bitch. In essence, such a law would be Justice Kennedy's ACA, not the one Congress passed and the President signed. I'm not at all sure he wants that level of notoriety, especially given the very real possibility that "Justice Kennedy's ACA" would be a very unpopular (and very possibly unworkable) bill.

[Guest]

FLOW - There was something I wanted to ask you in another thread, but the board was too sensitive at the time, so let me ask it here.

You seemed dismissive that this law was behind the recent slowdowns in health care spending having anything to do with this law because there was a trend that had started before the law was in place. Surely you would apply the same logic to RomneyCare and conclude that the law was not entirely or even mostly responsible for any increases in costs after the passing of that law since rising costs were a trend already in place there, right?

http://www.tnr.com/blog/jonathan-cohn/101993/obamacare-anniversary-coverage-payment-reform-cost

The second half of that piece has some more info on the national trend of reduced growth in spending. Keep in mind that I am not arguing that the ACA is entirely responsible for this trend; only that it is undeniably a factor.

[lokisnow]

So if the supremes can't be bothered to read the entire bill and decide if it's constitutional or not, who will?

[Ser Scot A Ellison]

Locksnow,

There were members of the House and Senate who could not be bothered to read the 2700 page bill when it was being debated. Further, the Court doesn't have the authority to review the whole bill and determine its constitutionality clause by clause. Only those provisions of the bill tha are in "controversy" are open to judicial review.

[Guest]

Locksnow,

There were members of the House and Senate who could be bothered to read the 2700 page bill when it was being debated. Further, the Court doesn't have the authority to review the whole bill and determine its constitutionality clause by clause. Only those provisions of the bill tha are in "controversy" are open to judicial review.

Whoa...is that true? If so, the media has done a shite job of reporting it. What method is applied for determining what aspects are controversial?

[Guest Raidne]

I admit it - I have never really thought about severability before today outside of contracts. But as I think about it, there is a serious line item veto problem - if Congress doesn't expressly say a provision us severable, how is a severing by the Court any different from an unconstitutional line item veto?

[Guest Raidne]

What Scott says is true but it just restates the question as Trisk notes IMO - that's the issue: what's in controversy? If the government hadn't argued that other provisions besides the mandate should be in controversy, however, I'm not sure it would have occurred to the Court to make severability an issue. Badly played by the government.

[Former Lord of Winterfell]

So if the supremes can't be bothered to read the entire bill and decide if it's constitutional or not, who will?

No, that's not the issue. The point is that this bill contains a lot of political compromises, and a lot of interrelated parts. If you strike down the mandate beause it is unconstitutional, how that affects the rest of the bill is more of a legislative/policy question than a legal one. The bill Congress voted for and the President signed is a bill that contains an individual mandate, which everyone agrees is one of the more important components of the bill. Would Congress have voted for this bill if that mandate wasn't included? My guess is probably not since the mandate is so important. But if the Court strikes down the mandate but leaves the rest of the bill in effect, the Court is essentially putting into law a bill that Congress didn't pass, and the President didn't sign.

But if you're going to argue that certain bits and pieces should remain in effect even if the mandate is stricken, that becomes more of a political judgment in terms of weighing different policy preferences than a legal one. Scalia was essentially saying that if you want the Court to only carve out the parts of the bill affected by the elimination of the mandate, you'd end up with judges poring over a 2700 page bill, and trying to balance the effect of the lost mandate over other supposed virtues in the bill, etc. Essentially, it would be a Court acting like a legislature.

[Former Lord of Winterfell]

FLOW - There was something I wanted to ask you in another thread, but the board was too sensitive at the time, so let me ask it here.

You seemed dismissive that this law was behind the recent slowdowns in health care spending having anything to do with this law because there was a trend that had started before the law was in place. Surely you would apply the same logic to RomneyCare and conclude that the law was not entirely or even mostly responsible for any increases in costs after the passing of that law since rising costs were a trend already in place there, right?

http://www.tnr.com/b...ent-reform-cost

The second half of that piece has some more info on the national trend of reduced growth in spending. Keep in mind that I am not arguing that the ACA is entirely responsible for this trend; only that it is undeniably a factor.

I don't think generalizations work. My point with the ACA was that almost no parts of it were in effect, so attributing drops in cost to it seems dicey. But Romneycare -- in particular the subsidies/increased access parts, were in effect. And it stands to reason that giving more health care to more people costs something more than zero. Hence, it is perfectly reasonable to attribute some cost increases to Romneycare. Anyway, I linked previously articles written by supporters of Romneycare who cited specific aspects of it that were increasing overall costs;.

It's not really rocket science. It is not "free" for the government to provide health care to people who previously weren't getting it.

[Shryke]

I don't think generalizations work. My point with the ACA was that almost no parts of it were in effect, so attributing drops in cost to it seems dicey. But Romneycare -- in particular the subsidies/increased access parts, were in effect. And it stands to reason that giving more health care to more people costs something more than zero. Hence, it is perfectly reasonable to attribute some cost increases to Romneycare. Anyway, I linked previously articles written by supporters of Romneycare who cited specific aspects of it that were increasing overall costs;.

It's not really rocket science. It is not "free" for the government to provide health care to people who previously weren't getting it.

Except parts of it are going to be in effect and basically the entire health insurance industry is desperately getting their act together to prepare for those new rules coming down the pipe. And doing so is already seeing savings.

Of course, you ignore this every time someone points it out and provides links and such. Just like with so many other issues.

[Kalbear]

I think I pretty much agree with FLOW's views on this whole thing. The commerce clause was always a stupid way to argue for this, and without the mandate the whole thing is basically shit.

And this makes me incredibly pissed off at Obama and the democrats who tried to put this together without seeing this (apparently obvious) trojan horse.