November 17, 2011

"69% Say Federal Government Lacks Authority To Force Purchase of Health Insurance."

A Rasmussen poll of 1,000 likely voters.

As I've said:

... I think the decision in the case is likely to track the will of the people, as perceived by the Court. So, it's important to advocates to create the appearance of public acceptance or public outrage over the law...

... I'm guessing the Supreme Court will strike down the individual mandate. The existing doctrine doesn't require that outcome, but I'm reading the political forces at play and assessing the Court's vulnerability to those forces, and that's my interpretation.
The Rasmussen poll reinforces my prediction.

53 comments:

DADvocate said...

According to virtually any poll, about 30% of Americans are OK with almost anything, except Congress' performance.

John said...

See what Justice Harlan Stone told Sec Labor Francis Perkins about Social Security when they were trying to design it.

Originally it was a regular insurance/pension type program with mandatory membership. Much like Obamacare.

Stone told Perkins at a tea party that if they did that, it would be found unconstitutional. The govt did not have the power to force people to be in an insurance/pension program.

Instead, he suggested, split it into 2 components. First a tax. The govt clearly has the power to tax income. This is the current payroll tax.

Then a welfare payment to oldsters. The govt clearly has the power under the "promote the general welfare" clause to do that.

This is the Social Security system that was implemented in the 30s that we still have today.

Amity Schlaes discusses this in The Forgotten Man. A brief version recounting Stone's advice can be found on the SS website at

http://www.ssa.gov/history/tea.htm

John Henry

edutcher said...

Your lips, and Rasmussen's, to God's ears, Madame.

Kansas City said...

I realize there is an oft repeated view that the Supreme Court sometimes follows the will of the people as expressed in elections, but I always thought the evidence was pretty scant and, in any event, I don't see how it will apply in this situation. Absent a move by Robers or some other conservative to lead an affirmance on narrow grounds, what Ann is saying is that Kennedy will take into account public opinion polls in making his decision. Maybe, but it is pure speculation.

By the way, isn't it sad that we know Obama's two political appointees will vote in favor of it on partisan grounds (as will Bryer and Ginsburg). I realize that arguably the same could be said of the four conservatives, but with them, there is at least some chance they will rule contrary to their politics.

Ignorance is Bliss said...

The existing doctrine doesn't require that outcome...

...but the existing Constitution does.

KenK said...

What a laugh. Who fucking cares what the great unwashed think about it? Certainly not life tenured article III federal judges.

Ned said...

Blogger Ignorance is Bliss said...

The existing doctrine doesn't require that outcome...

...but the existing Constitution does.

You would think a law professor would mention that...

Chip Ahoy said...

I cannot think about this important matter right now for my brain has initiated a self-repair routine having been assaulted by a devastating Bang-Bang virus.

ricpic said...

But doesn't striking down the mandate mean the entire bill must be struck down, since the bill contains no severability clause?

damikesc said...

But doesn't striking down the mandate mean the entire bill must be struck down, since the bill contains no severability clause?

Given that all other bills specifically include that clause, the writers were well aware of the issue when writing it.

so, no, legally, it should not be severable.

Kansas City said...

I think courts have great discretion on severability. Sure, the absence of a severabilty clause would be cited by a court that finds it is not severable, but as the 11th Circuit held, the Court could find it severable without a severabiltiy clause.

Ann Althouse said...

"But doesn't striking down the mandate mean the entire bill must be struck down, since the bill contains no severability clause?"

Severability is one of the issues the Court is considering, reviewing a decision that found the provision severable. The failure to include a severability (or a savings) clause is evidence that relates to whether the provision is severable.

Dan in Philly said...

I am so incredibly sick of the attitude that if a plurality of Americans happen to believe something, it must be true. I don't like or want the mandate, but the whole idea that polling date = truth is just tiresome.

I hope the SCOTUS doesn't rule based on polling data. Why not just cite that in the majority opinion? That way, if the majority ever changes its mind, it will be perfectly constitutional to overturn the case, citing a fickle public is more important than the constitution...

Ignorance is Bliss said...

Ned said...

You would think a law professor would mention that...

You would think that if you were incredibly naive about the way constitutional law is taught or practiced.

Ignorance is Bliss said...

Here's an experiment someone should run:

Take all of the Supreme Court decisions from the last 75 years and remove from them any direct quotes from the Constitution itself ( but leaving in references to the article and section that the removed text came from ).

Then try to reverse-engineer the Constitution from the Supreme Court decisions. Would it look anything like the Constitution as written/amended?

Henry said...

Rather ironic that the thing the government can't force you to do is get something for your money. It can rob and it can give, but it can't make you buy.

(See John Henry's post above for context.)

Allie said...

Good. No one should be forced to buy health Insurance. Obama care is nothing more than a gift to big Pharma and the Health Insurance industry.

On to a Singapore style health care.

Coketown said...

Good. No one should be forced to buy health Insurance. Obama care is nothing more than a gift to big Pharma and the Health Insurance industry.

Allie? Is that you? Are you being facetious or do we actually agree on something? Hallelujah! Miracles do happen.

Allie said...
This comment has been removed by the author.
Allie said...

Coketown, yes it is I. No I'm not being facetious.

traditionalguy said...

The Marbury v Madison decision was not as significant as this one will be.

If Commerce regulation powers includes mandatory commercial transactions by citizens, at the Federal Bureaucracy's whim, then it is all over. We are a Dictatorship.

Obama always did want to see the USA ruled like Chinese Party Bosses rule China. That will take all of the ignorant resistance out of Reform and Redistribution.

themightypuck said...

We are not a dictatorship. We simply have less protection from Congress. You don't need the US Constitution to not be a dictatorship. See England or Canada for instance.

edwardroyce said...

If the SCOTUS ruling depends on what they perceive is the popular desire of the "people" then the whole theory that the SCOTUS interprets the US Constitution goes out the window and the whole thing is nothing but a bald-faced lie.

And considering how complete idiotic the past rulings by the SCOTUS have been, that's a generous interpretation.

themightypuck said...

I think the SCOTUS is a highly respected institution. You get some judge made law which is sometimes a bit egregious. I was looking at the NBA labor dispute and one big thing in labor law is the non-statutory labor exemption. That's got judge made right in the title.

edutcher said...

KenK said...

What a laugh. Who fucking cares what the great unwashed think about it? Certainly not life tenured article III federal judges.

Which is why Perry's call for term limits for the Federal judiciary is a great idea.

Whether Perry goes any farther or not, I'm betting that idea will.

John Lynch said...

If they hadn't tried to lie and simply taxed us it would have worked.

AJ Lynch said...

Shut and eat your peas! And let me eat my waffle!

Pogo said...

"We are not a dictatorship."

Well, we don't have a single dictator, but we are now under dictatorial authority.

Literally everything you do is under the purview of the state; its obtrusion increases apace, and its control never ever declines.

So we may not have a Stalin, but we have a million little stalins, each issuing rule after rule, and no one can stop them.

Alex said...

Obama is acting as though he's a dictator. Isn't he abusing the executive orders to shackle the energy industry?

Carol_Herman said...

Well, the 9 robed wonders have KELO to fall back on. If they need a lesson in what not to do with their branch of government.

Still, it won't be a unanimous decision. And, it would pay Clarence Thomas as Kagan to "recuse." So they don't get hit by any falling debris.

If Roberts is on the majority side, to whom would he give the "benefit" of writing the opinion?

What if the "majority" ends up being a bunch of "concurrences?" Wouldn't that mean that you'd get a muddled approach? That no one could use, again?

Senators, in the upcoming election, may find the public less than thrilled with ALL of them seeking re-election.

As to Anthony Kennedy, his ONLY shot at "writing" the opinion would rest on his ability to be the 5th vote ... a'la Sandra Day O'Connor. But who can equal plastic reindeer?

Oh. Have you noticed the lack of respect O'Connor's opinions get these days? (Separate from law school classes, where the questions are designed to trip up students?)

The 5+ hours of "orals" ... may also get "sound bit" ... even if it's not televised.

Wonder how this affects the 9 jurists who get to ask questions.

Do those who "recuse" get time limits where they'd still be allowed to participate in Orals?

I'd bet ALL those congress critters ... in both parties ... hope "obama care" dies on the vine.

I'd even bet Obama wouldn't mind seeing it go away ... like his birth certificate "went away."

timmaguire42 said...

The argument that the mandate is unconstitutional is not a slam-dunk, but I believe the mandate crosses a line that previous laws have not crossed and so is a case of first impression.

The argument that the mandate is constitutional strikes me as a classic case of the argument that proves too much. I have yet to hear a response to the question, if the is within the power of congress, than what is not?

Supreme Court affirmation of the mandate would be the death knell of limited government and as far as I can tell, even supporters know this to be true. They just don't care.

Alex said...

I'm so much better then you burger & fry munchers. I'm enjoying a salad consisting of fresh herb greens, cucumber, tomato, red onion, carrot, bell pepper and leeks in a olive oil & black balsamic vinegar dressing. I wallow in my dietary superiority.

X said...

President Gutsy Call and the Congress didn't have the stones to pass a straight tax hike. They didn't have the stones to repeal the Bush tax cuts. They couldn't even not extend them.

Now he's trying to get the SuperCommittee to do it for him.

rocketeer67 said...

On to a Singapore style health care.

Caning: it'll cure what ails ya.

cubanbob said...

The court is going to toss this thing. The only question is how broadly or narrowly it will do so.

Even the liberals on the court if they take the long view will realize that this nearly unlimited expansion of government power will come to haunt them in the future when the political pendulum swings as it inevitably will.

So will it be 5 to 4, 7 to 2 or 9 to 0?

Pogo said...

Unfortunately, the nearly unlimited expansion of government power will continue, but in smaller slices.

By next year, the government mandates I tell them each and every drug you're taking.

Oh, it's under the guise of "e-prescribing", patient safety, etc., etc., but what it means is the State will have your data.

More rules to come, my friends. We talk about them every day here. Hundreds and hundreds of rules. A kudzu of regulation all of which spell:
They own you.

Get used to it.

Medicine is, as of 2009, no longer about you, the free-citizen-as-patient, but you, the State Welfare recipient, the supplicant, Oliver twist begging for more.

X said...

Pogo, I'm in financial services and the public has no clue how much regulation and new costs are being layered on and passed on to them. I'll bet Obama is genuinely puzzled as to why the recession drags on.

Pogo said...

Exactly. One straw, then another, then another still.

Gosh, what's wrong with the camel?

Goddamned lazy animal.
Shirker! Wrecker!

ndspinelli said...

Professor, I use Expedia for most of our travel. If I click on here do you get a vig? If so I'll use this link. Is this ad new or have I been innattentive?

ndspinelli said...

Professor, I use Expedia for most of our travel. If I click on here do you get a vig? If so I'll use this link. Is this ad new or have I been innattentive?

ndspinelli said...

And, do you know where I can get help for impulsive mouse clicking?

ndspinelli said...

Or, would it be compulsive mouse clicking?

Scott M said...

Or, would it be compulsive mouse clicking?

It depends on which end you're using.

Pogo said...
This comment has been removed by the author.
Lionheart said...

Pogo, I think that having medical records digitized and ready for uploading to Dr. Obama will have a chilling effect on Doctor/Patient communications. Never admitting any behavior that might be used to deny care in the future may offer protection from denials at the cost of current treatment choices based on full disclosure.

What used to be a private conversation between my doctor and me is now like a posting to YouTube.

Pogo said...

Damn straight.

But look for serum cotinine tests to check and see if you're smoking.

And I predict bounties for reporting unsafe behaviors, just as there are whistleblower bounties for financial fraud.

I pity the Soviet ex-pats now in the US.
Outta the frying pan...

Kansas City said...

Cubanbob

I find it almost impossible to believe that the liberals on the court will vote against the dream of liberals for the last 60 years, at least. The two recent appointments are down the line partisan liberals and will not vote against it.

James said...

The poll doesn't reinforce your prediction that "the decision in the case is likely to track the will of the people."

But, if that prediction is assumed to be true, then the poll does reinforce your conclusion that the court will strike down the mandate. Which is what you meant, I suppose.

sorepaw said...
This comment has been removed by the author.
cubanbob said...

James said...
The poll doesn't reinforce your prediction that "the decision in the case is likely to track the will of the people."

But, if that prediction is assumed to be true, then the poll does reinforce your conclusion that the court will strike down the mandate. Which is what you meant, I suppose.

11/17/11 4:35 PM

The bill as written is such an epic disaster that if it is upheld its unworkable. And it will spawn an interminable number of suits that will keep the courts tied in knots for years. truly if they had any sense they would kill it and start anew.

ken in sc said...

There are already two ways to establish totalitarian control in the US within the constitution. One is to raise the income tax to 100% and then the government gives you back what they think you deserve, based on your behavior. There is nothing in the constitution that prevents this. Another is to reinstate the draft and draft everyone into the military and make everyone subject to military law. This one is on more shaky ground constitutionally because the draft was not really constitutional to begin with, but there is precedent.

nevadabob said...

If the Supreme Court doesn't strike down the individual mandate then we really no longer need a Supreme Court, do we?

The court is deciding its OWN fate - and so naturally I predict they'll strike down this unconstitutional law.

MarkD said...

That bit about deriving their just powers from the consent of the governed just won't go away.

Kelo was proof they are making it up. Why should we listen?