Will the SCOTUS strike down the Affordable Care Act?

[Guest Phailadelphia]

http://campaign2012.washingtonexaminer.com/article/obamacare-trial-cases-policy-implications/442746

 

Obamacare on trial: The case's policy implications

 

Beyond its constitutional importance, the outcome of the U.S. Supreme Court’s decision on President Obama’s national health care law will have dramatic policy and legislative implications.

 

There are three ways the Supreme Court could rule (which it’s expected to do by June). It could uphold the law, strike down the whole law or only strike down parts of the law.

 

If the Court upholds the entire law, the only option left to opponents of Obamacare will be to repeal it legislatively. This would be an extremely difficult process.

 

To repeal the law, a Republican would have to win the presidency in November. The GOP would probably have to retain the House and gain a majority in the Senate as well.

 

Because it is unlikely that Republicans will gain the 13 seats needed to secure a filibuster proof 60-vote majority, Republicans would have to pursue repeal through the budget reconciliation process. And although reconciliation allows legislation to pass with 50 votes plus that of the vice president, it’s a messy parliamentary tactic that might leave many parts of the law intact.

 

If the Supreme Court strikes down the entire law, it would take a lot of pressure off Republican lawmakers. But the GOP would still have to unite around an alternative plan to reform the health care system. Without Obamacare, they will still need a plan to bring down the unsustainable cost of government health care programs, a primary driver of our nation’s debt. If Republicans don’t pursue market-based reforms when they have the opportunity, Democrats will at some point regain power and try again – and the result could be an even bigger expansion of government’s role than Obamacare.

 

More difficult questions arise when considering what would happen if the Supreme Court only overturns parts of the law – particularly the mandate requiring individuals to purchase health insurance.

 

The mandate is a central aspect of the law, because it’s the mechanism for bringing healthy people (and their money) into the insurance pool. The mandate is meant to offset the distortion in the marketplace caused by another part of the law, which requires insurers to cover those with pre-existing conditions at the same price as others.

 

In the absence of a mandate, healthy people would have an incentive to go without insurance, knowing that insurers couldn’t deny them coverage if they got sick. This would drive up the price of insurance, which would then cause more healthy people to leave the market, leading to even higher rates. Eventually, the so-called “death spiral” would ensue, and the private insurance market would fall apart.

 

If only the mandate is overturned, Republicans would push for legislative repeal of the rest of the law while Democrats would push for some way to “fix” Obamacare. If Americans elect a divided government in November, this will be a bruising battle that could make the debt ceiling debate look tame.

 

The Supreme Court also has the option of striking down both the mandate and the ban on pre-existing conditions, on the grounds that the two are inseparable. That would take some of the heat out of any legislative battle, given that the threat to private insurers’ viability would be less acute. But Congress and the President would still have to fight over what to do with the rest of Obamacare.

 

In addition to the mandate, the Supreme Court is also hearing a challenge to the law’s Medicaid expansion brought by 26 states led by Florida. If the Court found this to be unconstitutional, it could have wide ramifications, not only on one of the largest government programs, but on federal power over states in other programs that they manage jointly.

 

D-Day is March 26th so healthcare reform is back in the national spotlight. What do you think? Will the SCOTUS rule the individual mandate a tax? If so, no lawsuit can be filed to challenge it until its implementation in 2014. If not, then the decision will come down to debate on two topics: 1) Is the individual mandate constitutional?, and 2) Is the expansion of Medicaid coercive? And if the individual mandate is found unconstitutional, how will it affect the bill in its entirety? Is it severable from the legislation?

 

Discuss.

[Thanatos 2,847]

No, it's not Constitutional.

 

Forcing people to buy health insurance sets a dangerous precedent. The next logical step would be regulating how much people can eat/smoke/drink.

 

It is severable from the bill as a whole, but it strikes a serious blow at it and undermines one of the important parts of it.

[Tarkenton 0]

My feeling is that with every new government program comes a loss of liberty.

 

The government on both sides of the aisle do things they should not usually to garner votes to keep themselves in power, not for the good of the country.

 

Our country was made strong when the power was with the people to run their own lives, start businesses, etc. We were already struggling with the ability to pay for medicare, social security, etc. What we did not need was another massive government program which would drive us further into the hole destroying the dollar on its way.

 

I hope it is struck down

Edited March 23, 2012 by Tarkenton

[Guest Phailadelphia]

No, it's not Constitutional.

 

Court precedence says otherwise.

 

It is severable from the bill as a whole, but it strikes a serious blow at it and undermines one of the important parts of it.

 

I agree with this mostly. The individual mandate has long been a key to the success of universal health coverage everywhere, at least according to economists. Without it you get the free rider problem among other issues. The American Hospital Association (who support the ACA) basically said as much in their amicus brief to the SCOTUS on this case and they strongly support the individual mandate.

 

http://newsroom.heart.org/pr/aha/national-patient-groups-file-amicus-221770.aspx

“Patients with chronic diseases are already reaping the benefits of critical protections that prohibit insurers from denying coverage to children with pre-existing conditions, setting arbitrary dollar limits on benefits that can cause the sudden termination of coverage, and rescinding coverage after a policyholder receives a diagnosis. Other provisions enable children to stay on their parents’ health plan until age 26 and give uninsured patients with a pre-existing condition access to affordable health coverage. Beginning in 2014, additional provisions will guarantee health coverage to all applicants regardless of pre-existing conditions, prohibit insurance companies from charging people more for coverage because of their health status, establish minimum essential benefits for plans sold in health benefit exchanges and make quality care more affordable through tax credits based on financial need and expanded Medicaid eligibility.

 

“These and the law’s other patient protections can only work if all Americans are required to have health insurance. Without that requirement, healthy people tend to avoid buying insurance until they need it, leaving insurance plans to cover a sicker population and driving up costs for everyone in the health care system.

 

“Without the patient protections that the individual responsibility provision makes possible, large numbers of people with life-threatening chronic diseases will be denied care or charged far more than they can afford for it. The evidence is clear that barriers to care result in advanced-stage disease with poorer health outcomes.

 

“Health insurance coverage is essential to leading a healthy life. We are optimistic that timely review by the nation’s highest court will end confusion about the validity of the law and allow implementation to continue in a way that supports and strengthens provisions of the law that enable patients with chronic diseases to access quality, affordable health care.”

 

Technically you could severe it from the legislation but it's going to cripple health care reform and I think the states challenging this are well aware of that fact.

Edited March 23, 2012 by Phailadelphia

[Thanatos 2,847]

Court precedence says otherwise.

 

I don't really give a damn what the Courts said earlier. I'm looking at what the Constitution says.

 

It's not Constitutional for the federal government to force people to buy individual health insurance. If they want to take the risk and not buy health insurance, that should be their prerogative.

[Guest Phailadelphia]

I don't really give a damn what the Courts said earlier. I'm looking at what the Constitution says.

 

It's not Constitutional for the federal government to force people to buy individual health insurance. If they want to take the risk and not buy health insurance, that should be their prerogative.

 

The Constitution does not explicitly contain any directives pertaining to health care, so you're going to have to be more specific than "that's not what the Constitution says."

There are cases dating as far back as 1834 that suggest the concept of the individual mandate is constitutional and within the bounds of the federal government. I spoke with a constitutional law professor yesterday who echoed the same sentiments.

[Thanatos 2,847]

The Constitution does not explicitly contain any directives pertaining to health care, so you're going to have to be more specific than "that's not what the Constitution says."

 

Exactly. The 10th Amendment of the Constitution:

 

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

 

From Wikipedia, the passage I think is relevant to the discussion:

 

The Supreme Court rarely declares laws unconstitutional for violating the Tenth Amendment. In the modern era, the Court has only done so where the federal government compels the states to enforce federal statutes. In 1992, in New York v. United States, 505 U.S. 144 (1992), for only the second time in 55 years, the Supreme Court invalidated a portion of a federal law for violating the Tenth Amendment.

 

The case challenged a portion of the Low-Level Radioactive Waste Policy Amendments Act of 1985. The act provided three incentives for states to comply with statutory obligations to provide for the disposal of low-level radioactive waste. The first two incentives were monetary. The third, which was challenged in the case, obliged states to take title to any waste within their borders that was not disposed of prior to January 1, 1996, and made each state liable for all damages directly related to the waste. The Court, in a 6–3 decision, ruled that the imposition of that obligation on the states violated the Tenth Amendment. Justice Sandra Day O'Connor wrote that the federal government can encourage the states to adopt certain regulations through the spending power (e.g. by attaching conditions to the receipt of federal funds, see South Dakota v. Dole), or through the commerce power (by directly pre-empting state law). However, Congress cannot directly compel states to enforce federal regulations.

 

In 1997, the Court again ruled that the Brady Handgun Violence Prevention Act violated the Tenth Amendment (Printz v. United States, 521 U.S. 898 (1997)). The act required state and local law enforcement officials to conduct background checks on persons attempting to purchase handguns. Justice Antonin Scalia, writing for the majority, applied New York v. United States to show that the law violated the Tenth Amendment. Since the act "forced participation of the State's executive in the actual administration of a federal program", it was unconstitutional.

 

And then this passage from New York Magazine, in a rather surprisingly well-written article on Paul Clements, who will be arguing the side of this law being unconstitutional:

 

The man most responsible for this change of fate is Paul Clement, a former solicitor general under George W. Bush and the Supreme Court counsel for the state attorneys general. Tea-party politicians, including some of the lawsuit’s plaintiffs, routinely speak of the new health-care law in apocalyptic terms. (“Obama­care is, in fact, the death knell for freedom,” Rick Santorum told an audience in Alabama this month.)

 

But the arguments against Obama­care that Clement makes in his elegantly written brief are substantially less vitriolic. They hinge on the claim that the Commerce Clause in the Constitution, which allows Congress to regulate certain activities, does not allow it to compel commerce in order to regulate it—in this case, by requiring all Americans to purchase health insurance.

 

In political and economic terms, it’s obvious why the individual mandate was built into the health-care act: If insurance agencies are to be required to cover every American, they will need co-payments from healthy customers to subsidize payouts to unhealthy ones. To the supporters of the new law, being forced to buy health care is a low-grade inconvenience at worst and the only way to make the market function. Clement doesn’t necessarily disagree; he simply contests that such a mandatory “subsidy” to the insurance industry is unconstitutional. If Congress can force Americans to buy health care, he argues, what would stop it from forcing us to purchase, say, American-made cars?

Edited March 24, 2012 by Thanatos19

[Guest Phailadelphia]

Exactly. The 10th Amendment of the Constitution:

 

The SCOTUS's Commerce Clause jurispredence is extremely expansive, so I don't think, nor does any legal briefing I've read yet state, that it violates the 10th Amendment.

 

And then this passage from New York Magazine, in a rather surprisingly well-written article on Paul Clements, who will be arguing the side of this law being unconstitutional:

 

 

When I was speaking with the constitutional law professor on Thursday he actually touched on this very point specifically. He noted that the SCOTUS will look to the Constitution in interpreting the individual mandate but, like every court, will highly regard previous SCOTUS rulings. He cited Wickard v Filburn (1942) as one of the landmark decisions regarding the Commerce Clause because the courts said the federal government is permitted to regulate economic activity "whatever its nature ... if it has a substantial economic effect on interstate commerce." I don't think there's any question health care has a "substantial economic effect." The argument that it's forcing players into the market uncovers an inherit flaw in their economic theory: individuals remaining "inactive" outside the market are making a decision to self-insure or shift costs to other individuals, and thus by an economic approach, are in fact "active" in the market regardless.

 

Moreover, the SCOTUS has never made a decision in any case regarding economic activity based on its "activity" or "inactivity" (the basis of Clements' lawsuit), and court precedence allows that federal regulation of interstate commerce where states cannot successfully regulate themselves (and let's be clear: they can't) is fully within the parameters of the Commerce Clause.

Edited March 24, 2012 by Phailadelphia

[Thanatos 2,847]

The SCOTUS's Commerce Clause jurispredence is extremely expansive, so I don't think, nor does any legal briefing I've read yet state, that it violates the 10th Amendment.

 

From the perspective of Court precedent, it probably doesn't. From the perspective of someone who sees the Federal Government as having gotten far larger than it ever should have been allowed to, it clearly does.

 

When I was speaking with the constitutional law professor on Thursday he actually touched on this very point specifically. He noted that the SCOTUS will look to the Constitution in interpreting the individual mandate but, like every court, will highly regard previous SCOTUS rulings. He cited Wickard v Filburn (1942) as one of the landmark decisions regarding the Commerce Clause because the courts said the federal government is permitted to regulate economic activity "whatever its nature ... if it has a substantial economic effect on interstate commerce." I don't think there's any question health care has a "substantial economic effect." The argument that it's forcing players into the market uncovers an inherit flaw in their economic theory: individuals remaining "inactive" outside the market are making a decision to self-insure or shift costs to other individuals, and thus by an economic approach, are in fact "active" in the market regardless.

 

Moreover, the SCOTUS has never made a decision in any case regarding economic activity based on its "activity" or "inactivity" (the basis of Clements' lawsuit), and court precedence allows that federal regulation of interstate commerce where states cannot successfully regulate themselves (and let's be clear: they can't) is fully within the parameters of the Commerce Clause.

 

Let me be clear here.

 

I'd give it about 2 to 1 odds that the Court strikes it down. So if I'm answering the question posed in the title, *Will* the SCOTUS... then the answer is unfortunately, I don't think so.

 

If the question is *Should* the SCOTUS... then the answer is a resounding yes. It's a clear violation, to me, of a basic right of the people, and a very broad interpretation of the Commerce Clause- so broad, that if this precedent is set, there is indeed nothing to prevent the Federal Government from forcing people only to buy American-made cars in order to help American businesses. It's an overreach of the Fed. Gov't's powers, a large overreach, and should be struck down.

 

But it will probably come down to what Kennnedy thinks on the matter, and I'm betting he lets it stand.

 

Also, by the logic indicated in the bolded part of your reply, you could pretty much justify forcing people to participate in almost any Federal program. If you are now defining people that don't want to buy into a product as being active in it merely because it shifts costs on those people that actually do want the product... that's a very dangerous line that was just crossed, IMO. "If you're not with us, then you're against us," almost. (Only a Sith deals in absolutes, remember. )

Edited March 24, 2012 by Thanatos19

[seanbrock 1,684]

No, it's not Constitutional.

 

Forcing people to buy health insurance sets a dangerous precedent. The next logical step would be regulating how much people can eat/smoke/drink.

 

It is severable from the bill as a whole, but it strikes a serious blow at it and undermines one of the important parts of it.

You might be overthinking here. Why would insurance companies want people to be healthy? Unless they have serious health conditions insurors make more money off people who drink/smoke/are fat. This is just so insurance companies can increase their profit and charge us all a fuckload more.

[Tarkenton 0]

I actually think insurance companies make more off of healthy people who pay in but never use their insurance. If you go to the hospital, then insurance is paying out and working against the hospital and doctors and such trying to pay less than they want.

 

Healthy peoples policies are clear profit, but mine do still go up

[Guest Phailadelphia]

The lawyer representing the ACA is seriously fucking everything up. Completely unprepared.

[Thanatos 2,847]

The lawyer representing the ACA is seriously fucking everything up. Completely unprepared.

 

Yup. Consensus now is that Clements wiped the floor with him.

 

Chances certainly went up that SCOTUS is going to repeal at least part of it.

[Guest Phailadelphia]

God I hope not. That would be a huge mistake (IMO).

 

Jerry Smith went off his rocker yesterday. What a tool.

 

http://www.washingtonpost.com/politics/judge-tells-justice-dept-clarify-remarks-on-judicial-activism-amid-health-care-debate/2012/04/03/gIQAcP18tS_story.html

A federal judge on Tuesday expressed concern over President Obama’s comments on the Supreme Court’s consideration of the health-care law and demanded a letter explaining whether Attorney General Eric H. Holder Jr. believes federal judges have the authority to strike down federal laws.

 

Judge Jerry Smith, a Republican appointee on the U.S. Court of Appeals for the 5th Circuit, was part of a three-judge panel hearing arguments in a lawsuit over the Affordable Care Act when he issued his unusual demand, saying the Justice Department must submit the three-page, single-spaced letter by noon Thursday, according to a lawyer who was in the courtroom. The demand was first reported by CBS News.

 

The lawyer said Smith cited Obama’s statements Monday, when in unusually blunt language, the president said overturning the law would amount to an “unprecedented, extraordinary step” of judicial activism.

 

The judge “said the president has been saying that unelected branches of government shouldn’t be activist and strike down federal laws,’’ according to the lawyer, who spoke on condition of anonymity to avoid antagonizing either side.

 

A court order cited the letter but did not give details. The other two judges hearing the case are also Republican appointees.

 

The White House and the Justice Department declined to comment.

 

The debate stems from the recent high court review of the law — which requires uninsured Americans to purchase health-care coverage — in which conservative justices appeared open to declaring the heart of the legislation unconstitutional.

[Thanatos 2,847]

Um... is there more to the quote?

 

He's just saying that Obama is putting pressure on the courts not to overturn a law. If the court thinks its unconstitutional, they should overturn it, that's their job.

 

Obviously Obama thinks its constitutional, otherwise I would hope he wouldn't have signed the bill in the first place.

Edited April 4, 2012 by Thanatos19

[Guest Phailadelphia]

Um... is there more to the quote?

 

He's just saying that Obama is putting pressure on the courts not to overturn a law. If the court thinks its unconstitutional, they should overturn it, that's their job.

 

Obviously Obama thinks its constitutional, otherwise I would hope he wouldn't have signed the bill in the first place.

 

I'm talking about this:

Judge Jerry Smith, a Republican appointee on the U.S. Court of Appeals for the 5th Circuit, was part of a three-judge panel hearing arguments in a lawsuit over the Affordable Care Act when he issued his unusual demand, saying the Justice Department must submit the three-page, single-spaced letter by noon Thursday, according to a lawyer who was in the courtroom.

[Thanatos 2,847]

I'm talking about this:

 

I am confused. Why is the 5th circuit holding court on the ACA when the Supreme Court is? Or is that from awhile back?

 

And he wanted a letter in much earlier than normal so that means he went off his rocker? How much earlier did he want it, exactly?

[Guest Phailadelphia]

I am confused. Why is the 5th circuit holding court on the ACA when the Supreme Court is? Or is that from awhile back?

 

And he wanted a letter in much earlier than normal so that means he went off his rocker? How much earlier did he want it, exactly?

 

From what I understand it was a 3-judge panel, not the 5th Circuit (although Smith is a member of the 5th Circuit).

 

I don't think you understand what he's asking. Smith basically threw a tantrum on the bench Tuesday, upset that Obama doesn't believe the SCOTUS should act as judicial activists by striking down a law that was democratically passed through Congress. Smith demanded that Eric Holder submit a paper stating whether he believes that federal judges have the authority to strike down passed legislation. Basically he questioned whether the president believes in judicial review and then asked his Attorney General to submit what amounts to a homework assignment explaining his position. It's childish and has no place in a court of law.

Edited April 4, 2012 by Phailadelphia

[Thanatos 2,847]

From what I understand it was a 3-judge panel, not the 5th Circuit (although Smith is a member of the 5th Circuit).

 

I don't think you understand what he's asking. Smith basically threw a tantrum on the bench Tuesday, upset that Obama doesn't believe the SCOTUS should act as judicial activists by striking down a law that was democratically passed through Congress. Smith demanded that Eric Holder submit a paper stating whether he believes that federal judges have the authority to strike down passed legislation. Basically he questioned whether the president believes in judicial review and then asked his Attorney General to submit what amounts to a homework assignment explaining his position. It's childish and has no place in a court of law.

 

Isn't that one of the major responsibilities of the court? Sure his reaction was over the top, but it's funny how the Dems use the court system to override the will of the states and of the people all the time because it's unconstitutional, (which many times it is), but then don't like it when the same thing *might* happen to one of the laws they like.

 

Striking down a law that was democratically passed through Congress is not judicial activism. It's the court's job, if the law is unconstitutional.

 

ACA's individual mandate is unconstitutional and should be struck down. It's an overreach of the Fed's powers and would set one hell of a dangerous precedent.

Edited April 4, 2012 by Thanatos19

[SteVo+ 3,702]

0Smith basically threw a tantrum on the bench Tuesday, upset that Obama doesn't believe the SCOTUS should act as judicial activists by striking down a law that was democratically passed through Congress.

 

Understandably so. It is the judicial branch's chief responsibility to interpret the Constitution, and thus determine whether or not this health care bill is Constitutional. Obama needs to shut the fuck up and realize that checks and balances exist for a reason.

[Guest Phailadelphia]

Isn't that one of the major responsibilities of the court? Sure his reaction was over the top, but it's funny how the Dems use the court system to override the will of the states and of the people all the time because it's unconstitutional, (which many times it is), but then don't like it when the same thing *might* happen to one of the laws they like.

 

Striking down a law that was democratically passed through Congress is not judicial activism. It's the court's job, if the law is unconstitutional.

 

ACA's individual mandate is unconstitutional and should be struck down. It's an overreach of the Fed's powers and would set one hell of a dangerous precedent.

 

Those were Obama's words, not mine. I was just pointing out Smith acting like a child.

[Thanatos 2,847]

Those were Obama's words, not mine. I was just pointing out Smith acting like a child.

 

Yes, but it clarifies his reaction.

 

He's not angry that Obama doesn't want to the court to be judicial activists, he's angry at the implication that the Supreme Court would be judicial activists if they strike down this law because Obama thinks its constitutional- even though this is just part of the system of checks and balances that we have in our government.