November 14, 2011

Supreme Court takes the Obamacare case.

Oral argument should be in March, with a decision by the end of the term, in time to have a massive impact on the presidential campaign. As I've discussed here, a decision to uphold the law will most likely hurt Obama's campaign for reelection.
If the Supreme Court upholds the individual mandate, Republicans will say: Now it's crucial to win the presidency and strong majorities in both houses of Congress so we can repeal this thing. If the individual mandate is unconstitutional, is there nothing Democrats can do? Well, the existing form of legislation is out, but there are other ways to extend health care that would not meet the same constitutional problem. But would Democrats want to argue that they need to win the presidency and strong majorities in both houses of Congress so they can push through some new health care reform? I doubt it. What a nightmare it was the first time, devastating the path of the Obama presidency and giving rise to the Tea Party!
From the first link, which is to Adam Liptak in the NYT:
The Supreme Court agreed to hear appeals from just one decision, from the United States Court of Appeals for the 11th Circuit, in Atlanta, the only one so far striking down the mandate. The decision, from a divided three-judge panel, said the mandate overstepped Congressional authority and could not be justified by the constitutional power “to regulate commerce” or “to lay and collect taxes.”

The appeals court went no further, though, severing the mandate from the rest of the law.

On Monday, the justices agreed to decide not only whether the mandate is constitutional but also, if it is not, how much of the balance of the law, the Patient Protection and Affordable Care Act, must fall along with it.
If the Court takes down the entire Act, it would do Obama a great favor, which is why I'm predicting the Court will do just that. That was my prediction a few weeks ago, reading, not the the existing doctrine, but "the political forces at play and assessing the Court's vulnerability to those forces."

109 comments:

Shouting Thomas said...

This will be fun. I'm looking forward to it.

I'm surprised that you think that the Court will decide this issue, in whole or in part, based on their perception of their decision's political outcome.

I kinda think they'll try, to the best of their abilities, to get it right.

Carol_Herman said...

What if the victory goes to the Supreme's, in defining what the Supreme's can and can't do?

Where would that put Roe?

Does Roe's decision fit into this agenda?

A conservative's ruling is what put this case on the Supreme's docket.

Why guess that the Supreme's would be suicidal? Even if both Kagan and Sotomayor want to "desent" in the face of majority opposition to Obamacare?

Why not think Obama would be relieved if Obamacara ... which was Nancy Pelosi's "baby" ... gets tossed?

Obama's not talking to Pelosi. He cut her off long ago.

Maybe, the "voice of confidence" from the Supremes will be to defer to Congress?

Republicans come out smelling like roses?

Carol_Herman said...

Will Obamacare go in order to save the Electoral College?

Will the hand that gets "forced" ... be that a Constitutional Crisis would call forth a Constitutional Convention?

Will Anthony Kennedy hold a "key?" Or is he shell shocked that he can't play the Sandra Day O'Connor "trump card."

Sandra Day O'Connor's trump cards include platic reindeer.

She wasn't on the court, though, when KELO came down the pike.

Oh, and the "global outlook game?" Which was Anthony Kennedy's favorite? Up in smoke, with the EURO BEE GONE.

Alex said...

There is no way in hell the 5-4 conservative majority is NOT going to strike it down lock, stock and barrel! This is what electing Reagan and the Bushes were all about. It comes down to this baby!

garage mahal said...

Either way Dems lose. Tits and clouds.

traditionalguy said...

This is bad news.

If the SCOTUS decision punts, as it will in a Presidential campaign year, then the best chance to cut out the Socialized Medicine Cancer will have been lost.

edutcher said...

Oh, come on, Ann, you're not going to vote for that slug again, are you?

Joe said...

I know clearly what I want to happen. I am less sure what will happen.

AJ Lynch said...

Quite a pivotal case- do the states keep their current, significant autonomy or does the fed govt take over anything it wants?

By cheering for one side or the other, what does it say when conservatives prefer state autonomy while libs prefer central control?

Shouting Thomas said...

Oh, come on, Ann, you're not going to vote for that slug again, are you?

What's the choice going to be?

There is one, and only one, reason that I sorta hope that Obama will be re-elected.

If he serves out both terms (and doesn't get impeached, which I'm afraid is a real possibility), the racism industry will take a hell of a hit.

After all, I don't expect a Republican president to be my salvation. I don't expect government to be my salvation, period.

cubanbob said...

Ann what if the court tosses the mandate and leaves the rest intact? What a mess that will be. Taxes will be collected but without a specific spending program those funds were supposed to be tasked for. And the states will still have the onerous Medicaid provisions.

If the thing is upheld then what is the limit to government power since virtually anything can be reduced to an economic transaction? And will the states rebel and opt out of Medicaid?

edutcher said...

Shouting Thomas said...

Oh, come on, Ann, you're not going to vote for that slug again, are you?

What's the choice going to be?

There is one, and only one, reason that I sorta hope that Obama will be re-elected.

If he serves out both terms (and doesn't get impeached, which I'm afraid is a real possibility), the racism industry will take a hell of a hit.


Somehow, I never saw you as a cock-eyed optimist.

Envisioning you as Mary Martin (or better yet, Mitzi Gaynor) takes some doing.

rick said...

I will be stunned if the court if the court overturns "free" healthcare. All of the planets are in alignment to do just that, but they won't. Same as Kelo, same as campaign finance reform. The expectations are there, but won't happen.

The US will continue on it's accelerating rate to Greecedom. When we arrive at that destination, the citizens will look around, scratch their heads and wonder what happened.

Larry J said...

After the infamous Kelo decision, I have little faith in the Supreme Court. Why should I believe they will rule to protect individual rights against government overreach?

Scott M said...

what does it say when conservatives prefer state autonomy while libs prefer central control

On a plane of government authority, with moderates dead center, the further right you go, the smaller the heavy hand gets until you get to anarchy. The further left you go, the bigger that hand gets until you have absolute tyranny.

Chip S. said...
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Hagar said...

Well, they do read the papers.

And a 2700 page bill with penciled in provisions that Harry Reid does not know who wrote them in, may just be a little too much for them, so they decide to find some reason to reject it.

Scott M said...

Ann what if the court tosses the mandate and leaves the rest intact?

Didn't the 11th CC decision say since there was severability mention, it invalidated the whole thing? So many CC decision, so little time...

Whether the SCOTUS punts the decision until 2012 or they come down with a decision before the election, it's bad for the President. The whole sordid affair leading up to the passing of Obamacare was SO bad that any replaying of it's high points will simply drive up the fervor on the right.

MadisonMan said...

Throwing out Obamacare would certainly help Obama's re-election chances.

Against a tossed-Obamacare backdrop, could a Republican Candidate keep the focus on the Economy?

edutcher said...

You must be joking.

Dust Bunny Queen said...

Quite a pivotal case- do the states keep their current, significant autonomy or does the fed govt take over anything it wants?

Aside from whether is is Constitutional to mandate that 'we the people' have to purchase a product, the State's Rights autonomy issue is HUGE.

Do the individual States have the right to manage things within their own jurisdiction to accommodate their individual and unique populations needs. Education, health care, welfare systems? Local environmental concerns and water rights?

This last one is also HUGE in our particular area and there is probably going to be a big showdown between the people who reside in the States that are affected (State of Jefferson btw) and Federal mandates made from a central location on the other side of the Continent.

AJ Lynch said...

Scott M;

But what does one's preference really indicate about you or me? Why does one person have such trust in and lust for central govt?

Why do I not give a damn how another state does what it does yet a librul wants uniform regulations and rules and mandates across the 57 states?

cubanbob said...

Scott M said...
Ann what if the court tosses the mandate and leaves the rest intact?

Didn't the 11th CC decision say since there was severability mention, it invalidated the whole thing? So many CC decision, so little time...

Whether the SCOTUS punts the decision until 2012 or they come down with a decision before the election, it's bad for the President. The whole sordid affair leading up to the passing of Obamacare was SO bad that any replaying of it's high points will simply drive up the fervor on the right.

11/14/11 11:45 AM

The district court ruled there was a severability issue, the circuit court (the 11th) the circuit court ruled there was not a severability issue. The circuit inly ruled the mandate was unconstitutional but left the rest intact.

Carolina said...

Alright! I knew sooner or later you would be back, just took a little longer than I expectedbusiness coaches

Hagar said...

At that, if the Supremes reject it on procedural grounds, it will be very interesting to see what Schumer & Co. will do next.

Chip S. said...

The politics of this are so intricate I confuse myself just thinking about them.

I can see how a 5-4, partisan overturn would give Obama a much-needed issue to energize his base. OTOH, in 2008 he didn't seem to think that what became Obamacare was a winning position on HCR. And it seems like running on it now would also energize the Republicans who might otherwise stay home out of disappointment with Romney. OTOOH, it does seem like the Dems are going to be more dispirited than the Reps next fall.

So I can see it cutting either way. But my gut tells me, an opponent of Ocare, that I'd rather see the SC overturn it and take my chances in the next election. A bird in the hand, and all that.

ElPresidenteCastro said...

According to Ilya Shapiro at Cato the Court will also consider:

"Whether the new conditions on all federal Medicaid funding (expanding eligibility, greater coverage, etc.) constitute an unconstitutional coercion of the states."

Now that could lead to an interesting result.

Scott M said...

The circuit inly ruled the mandate was unconstitutional but left the rest intact.

Ah...thanks for the correction. I suppose if the individual mandate is struck down, which I hope it will be, a GOP POTUS along with a GOP congress will have to eviscerate the rest of it.

Coketown said...

I think Obamacare being in the news cycle at all, regardless of the Supreme Court's decision, hurts the Obama campaign. The ACA remains devastatingly unpopular (2 years later, "Obamacare" is still pejorative), and with no tangible benefits yet materializing, its proponents have a far harder sell than its opponents. "Sure your premiums have skyrocketed since the ACA passed but we promise: just give us until 2014 and it'll be raining gold and gumdrops."

I understand the ridiculous theory that Obamacare being declared unconstitutional will help Obama, but I just don't see it. Has any legislative failure ever helped the president who proposed it? Bush's decline started after the spectacular failures of immigration reform and "privatizing" social security. They were unpopular pieces of legislation, but Bush didn't get credit when they went down in flames!

ndspinelli said...

I'm hoping they decide before open season.

edutcher said...

Chip S. said...

The politics of this are so intricate I confuse myself just thinking about them.

I can see how a 5-4, partisan overturn would give Obama a much-needed issue to energize his base.


And would energize the other 80% even more.

sorepaw said...
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sunsong said...
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sunsong said...

If the Court takes down the entire Act, it would do Obama a great favor, which is why I'm predicting the Court will do just that. That was my prediction a few weeks ago, reading, not the the existing doctrine, but "the political forces at play and assessing the Court's vulnerability to those forces."


Hey, you're the law professor! Let it be so!

garage mahal said...

The ACA remains devastatingly unpopular (2 years later, "Obamacare" is still pejorative), and with no tangible benefits yet materializing, its proponents have a far harder sell than its opponents.

There is a CNN poll that just came out that showed 52% support the mandate, including 52% of independents. Make what you will of that.

lyssalovelyredhead said...

I honestly don’t see how this doesn’t hurt Obama no matter what. If it’s unconstitutional, then he and the dems pushed this unconstitutional thing down our throats, and have no respect for our constitutionally protected rights. If it is constitutional, everyone’s mad about it again and the Tea Party base gets excited all over again. If it’s severable, there’s the whole mess of how to apply it and why they screwed it up so badly. Either way, we’re talking about it again, and, as we well recall, the more we talk about it, the less we like it.

Even if SCOTUS punts on standing or something similar, I’m not seeing how re-opening that wound helps Obama more than it hurts him.

- Lyssa

Lucius said...

So is this the conspiracy theory (of sorts) that Ann alluded to a while back?

Will Obama purposely signal to the lib Justices his real intentions?

He has to maintain mega-deniability, if so.

Or hell, does he?

Chip S. said...

Will Obama purposely signal to the lib Justices his real intentions?

A recusal by Kagan might suffice.

Pragmatist said...

I am sure the decision is going to be based on nothing but political considerations. Just like Gore V Bush. I do not think the individual mandate is as unpopular as the anti-O folks would like to think. There is a mandate for SS and Medicare, big deal. And auto insurance in most places. If you want health care you need to pay for it. I think the idea of another large public spending project is more problematical. The people I know who are against the new health care law are more concerned with how we are going to pay for it. Not that we will be required to have insurance.

Scott M said...

And auto insurance in most places.

You realize why this has zero relevance to the topic at hand right? Or are you getting notes straight from our President, who doesn't seem to understand liability insurance?

If you want health care you need to pay for it.

What if you don't want health insurance? What if you want to keep your HSA?

The idea of the government forcing you to purchase something (different than SS and Medicare) simply because you exist isn't problematic to you?

BarryD said...

Uh, if the Court does the country this enormous favor, I'm willing to accept that it might benefit Obama politically.

I mean, so what? The tides of politics wash up and down the shore. Establishing SOME limit to what the Commerce Clause authorizes is a much bigger deal.

BarryD said...

BTW if Romney is running against Obama, it will benefit Romney a great deal, politically, also.

Take both Obamacare and Romneycare out of the equation, and Romney's campaign can be all-economy, all-the-time, and this is very likely to be a winning strategy.

Right now, Romney has no such luxury.

garage mahal said...

You realize why this has zero relevance to the topic at hand right?

That's almost like saying renting a movie video is just like a constitutionally protected right to vote!!

Chip S. said...

That's almost like saying renting a movie video is just like a constitutionally protected right to vote!!

You lost me here.

ScottM is undoubtedly referring to the fact that auto-insurance mandates are imposed by the states, not the federal government. You know, the level of government that's putatively restrained by the interstate commerce clause?

Nobody on the right has argued that Romneycare is unconstitutional. A bad idea, perhaps, but not unconstitutional.

Scott M said...

No, GM. Auto insurance depends entirely on whether on not someone owns and uses a car. You can own a car, but not drive it, ever. You can likewise NOT own a car and use other means of transportation. Neither of those situations require the purchase of auto insurance.

If I'm incorrect, please explain why.

Tim said...

Justice Kennedy will be the decisive vote.

How much power does he want the federal government to have under the commerce clause to force you to buy shit that you don't want to buy?

Answer that question, and you'll have your answer.

wv: culfe - be vewy, vewy culfe for what you ask for.

Coketown said...

There is a CNN poll that just came out that showed 52% support the mandate, including 52% of independents. Make what you will of that.

Here's the Real Clear Politics average of polling on Obamacare: 38.6% favor, 50.6% oppose. Make what you will of that.

ricpic said...

If the Court takes down the entire Act, it would do Obama a great favor, which is why I'm predicting the Court will do just that.

Breathtaking cynicism. Simply breathtaking.

lyssalovelyredhead said...

No, GM. Auto insurance depends entirely on whether on not someone owns and uses a car. You can own a car, but not drive it, ever. You can likewise NOT own a car and use other means of transportation.

Actually, you can even own a car and drive it without insurance, just not on the public roads (you could drive a truck around a farm without insurance, for example).

Tim said...

"If the Court takes down the entire Act, it would do Obama a great favor, which is why I'm predicting the Court will do just that."

Uh, respectfully, no.

Stupid people need no more or less reason to vote for Obama - they did so before, they'll do so again. Having divested themselves of reason and experience before, most all of them will have no reason to cite reason or experience to inform their votes this time around.

Now, if Romney, improbably, plays a better tune than does Obama to attract the idiot vote, he might very well win. But as the idiots involved in Act Out on Wall Street, as well as in Greece conclusively prove (as if it hadn't been proved beyond a reasonable doubt long before now), the dulcet promises of Socialism, or just plain living at someone else's expense, are just too attractive to pass up. That it cannibalizes our future is of no concern to them - they think, despite all evidence to the contrary - rich people will always be here to make the shit we need, and have the cash to leach to buy us stuff we didn't, wouldn't, or couldn't earn on our own.

garage mahal said...

If I'm incorrect, please explain why.

I was just thinking back to your comparison of voting and renting a movie. Or was that Hoosier?

Scott M said...

Probably HD. I don't remember the comparison. Anything's possible though. If you give me a sec, I'm sure I could craft some juicy voting/movie rental snark, though.

themightypuck said...

Ann "Alex Jones" Althouse. Are you suggesting a 7-2 decision with Kennedy and Scalia voting to uphold? Please. It will be 5-4 and all the libs will vote to uphold the law. Thomas will vote to kill it. The rest probably vote to kill as well in increasing likelihood from Kennedy, Scalia, Roberts to Alito.

Kansas City said...

This will be on fascinating legal/political case before the supreme court. Upholding it definitely hurts Obama 2012 because it energizes opponents. Overturning it is harder to assess. Many conservatives say overturning will also help republicans, but I think Obama could turn that issue in his favor by arguing the conservative court took health care away from 40 million people, without worrying about the details of the law. It releases him from the burdens of the law.

PREDICTION: Robers will lead a very narrow majority opinion upholding the law in a manner that seeks to avoid application of the ruling to any other issue. It will increase his stature, increase the likelihood of Obama being defeated, and increase the likelihood that the law is legislatively overturned. Brilliant quasi political move by an experienced player in Roberts. He also may genuinely believe it is a political question that the court should stay away from.

I don't see where Ann demonstrates how popular opinion will influence the court.

Scott M said...

It will be 5-4 and all the libs will vote to uphold the law.

5-3. If The Kraken has an integrity, she'll recuse.

Joe said...

Chip S says: "Nobody on the right has argued that Romneycare is unconstitutional. A bad idea, perhaps, but not unconstitutional."

As far as I know, you are right, but interestingly, under a theory such as that in Lochner v. N.Y., Romneycare might well be found unconstitutional. I recommend David Bernstein's Rebabilitating Lochner.

Mike said...

Leviathan is too danged big. Anything that cripples the beast and keeps it where it belongs (with its foot off our collective neck) is a good thing.

We've gotten to the point where there's nothing but parasitic pustulent pusillanimous "punters" (and I don't mean gamblers) on the Potomac. Other than that, there's not a thing wrong with our Federal government.

sorepaw said...
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Mick said...

Don't worry "law prof" those that are awake will keep Obama off the General election ballot because he is not a natural born Citizen, i.e born in the US of US Citizen parents. Obama's birth as a British subject, to a British subject father, voids his eligibility. So you won't have a chance to vote for an ineligible candidate again. Obama has proved correct the founders' fear of foreign influence into the Oval Office, by allowing one who is not a creature of our own to ascend to the Presidency, and you helped. You should be ashamed.

I wonder if fellow Marxist Kagan will recuse herself, since she was involved in WH discussions about Obamacare's Constitutionality as Solicitor General. Probably not since Obama and his band of criminal Marxists care little for the rule of law.

Do your students use Justia.com?

http://naturalborncitizen.wordpress.com/2011/11/11/justiagate-say-it-aint-so-carl-malamud/

sorepaw said...
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Pogo said...

In my view, it's already too late. Parts of the health care law have already begun, and it snowballs next year.

Just glance at the requirements 'Meaningful Use' and cry.

Or peruse the Standards cross referenced to the Code of Federal Regulations Citations and realize the kudzu of regulations is set to kill off all medical innovation within 5 years.

Just try -try- to comply with the Core Measures for All Eligible Professionals, Medicare and Medicaid in the Final Rule. Ha ha ha. You cannot possibly comply, but you must follow the rules!

And this is only the beginning. Already, a good portion of doctor visits are being spent doing things the government wants.

You say you have symptoms of concern? Well too bad. Obamacare wants data. Your puny problem couldn't be more unimportant.

Obamacare will not be "overturned". It already is up and running. You think the recent vaccine shortages have been an anomaly? It's the plan for all future rationing.

Scott M said...

Pogo is a glass half disaster kinda guy.

garage mahal said...

You should know that the unit's programmers input polling data only when it suits their prejudices.

Due to faulty programming the unit known as sorepaw wasn't aware a poll released today that shows support gaining from their previous poll would have any relevance to the topic at hand.

ZZZZIIINNNNGGGG!!!!!!

Pogo said...

@Scott M:

When I was born, my Momma wanted to name me Harbinger Of Doom, but thought there weren't no good nicknames for that, so relented.

sorepaw said...
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Allie said...
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Allie said...

Good I hope they overturn it, then on to a Singapore style health care system.

http://en.wikipedia.org/wiki/Healthcare_in_Singapore

Roger J. said...

Where is Roger B Taney when we need him.

Robert Cook said...

"I will be stunned if the court if the court overturns 'free' healthcare."

I will too, given that Obamneycare is no such thing...it is still healthcare provided by private doctors and paid for through private health insurers, the premiums paid by private citizens using their own money.

"If the SCOTUS decision punts, as it will in a Presidential campaign year, then the best chance to cut out the Socialized Medicine Cancer will have been lost."

No, no...this is a decision to be rendered about Obamneycare, not Medicare!

garage mahal said...

Due to faulty programming the unit known as sorepaw is incapable of understanding internet humor.

Hey, this is fun!

Roger J. said...

As someone noted above, far too many political ramifications to wrap one's mind around--

Personally I am disappointed that the SCOTUS is taking this case immediately prior to an election.

The AMA thing is best handled as a political issue, and the 2012 election would better resolve it as a political issue.

I am just as leery of SCOTUS overreaching, as I am of the Congress of the POTUS.

Scott M said...

the premiums paid by private citizens using their own money.

RC, can you please explain the distinction between "private" citizens and other sorts of citizens?

Roger J. said...

AND the POTUS--sorry

Original Mike said...

"When I was born, my Momma wanted to name me Harbinger Of Doom, but thought there weren't no good nicknames for that, so relented."

"Just call me Gloom".

David said...

Althouse, do you think the "liberals" on the SC will vote to overturn the law in an effort to help Obama?

Roger J. said...

Original Mike: or we could call him Ismael (apologies to Herman Melville)

Kansas City said...

Sorepaw,

SCOTUS has traditionally stayed away from political questions. This is more difficult to do that since it is so clearly a constitutional question than the typical political question case. But as Roger said, there is a good argument that health care should be fought in the political arena, rather than a closely voted SCOTUS opinion.

There is not question in my mind that Roberts is plenty smart enough to guide the court to a narrow decision upholding the constitutionality of the law and essentially throwing the issue back to the legislature. Still my prediction.

Pogo said...

That's not my name

MikeR said...

Maybe liberals will tell me I'm wrong, but I can't believe that losing the ACA wouldn't be a crippling and overwhelming blow to them. What do they have to show for their tremendous victory in 2008? Wall Street bailout and regulation? Kash for Klunkers? GM bailout? Stimulus bill? Guantanimo? Afghanistan? Cap and Trade? Immigration?

What do they look upon with some satisfaction? Health care. Is there anything else?

They went all in with everything they had to get health care reform, and believed it was worth it at the price. If that goes, I would have thought that many of them will quit in despair.

MayBee said...

Actually, you can even own a car and drive it without insurance, just not on the public roads (you could drive a truck around a farm without insurance, for example).

Even then, you can still drive without being insured. You just can't get caught driving without insurance.
The IRS doesn't make you prove you've paid your auto insurance for the year.

cubanbob said...

Pragmatist said...
I am sure the decision is going to be based on nothing but political considerations. Just like Gore V Bush. I do not think the individual mandate is as unpopular as the anti-O folks would like to think. There is a mandate for SS and Medicare, big deal. And auto insurance in most places. If you want health care you need to pay for it. I think the idea of another large public spending project is more problematical. The people I know who are against the new health care law are more concerned with how we are going to pay for it. Not that we will be required to have insurance.

11/14/11 12:34 PM

Get your facts stright. Medicare and Social Security are taxes, not mandates and they were specifically defined by taxes in their enabling legislation. Obamacare doesn't make the mandate an apportioned tax, a huge screw up by the democrats. That is why there is no comparision to Obamacare and Medicare and Social Security, both of those programs are tax and welfare schemes, not mandates.

As for your comment about auto insurance, it is a silly argument.
You don't need auto insurance to own a car or drive a car only to drive it on a publicly owned roadway. The proper comparison to Obamacare is having someone who neither owns a car or has a driver's license be compelled to buy auto insurance just to lower the overall auto insurance rates.In other words, as a condition of living.

Robert Cook said...

"Maybe liberals will tell me I'm wrong, but I can't believe that losing the ACA wouldn't be a crippling and overwhelming blow to them...They went all in with everything they had to get health care reform...."

ACA is hardly health care reform.

Seeing Red said...

More popcorn.

Coketown said...

ACA is hardly health care reform.

I think this sentiment may be Obama's biggest problem. There was so much effort and energy poured into the legislation, 18 months of sharp focus, backroom deals, nail-bitingly close votes, false starts and ends with Specter changing parties and Brown being elected, etc. etc., but in the end the ACA is a trillion dollar bill that doesn't do much. There is, as they say, an enthusiasm gap between its proponents and opponents.

Seeing Red said...

I will too, given that Obamneycare is no such thing...it is still healthcare provided by private doctors and paid for through private health insurers, the premiums paid by private citizens using their own money.


give it time, that will be a thing of the past in a few years.

Bruce Hayden said...

I will too, given that Obamacare is no such thing...it is still healthcare provided by private doctors and paid for through private health insurers, the premiums paid by private citizens using their own money.

Well, not entirely. Friend got dumped from her health care insurance at her birthday this year in preparation for full implementation of ObamaCare, and the alternative appears to be a new federal program for the uninsurable.

The other thing to keep in mind is that the apparent intent here is to move to a government system when the government mandates drive the private systems out of the market - at least for those not working for large companies, unions, or law firms. The problem though is that as long as the Republicans control the House, that isn't going to happen.

p.s. while the left gets great amusement out of "Obamneycare", the litigation will only affect "ObamaCare", and most likely have no effect on what was passed into law in MA (by the Dems, but with Romney's signature). The major challenge to ObamaCare is to the Individual Mandate in relation to its Commerce Clause justification. A state would not depend on federal Commerce Clause to justify such a mandate.

Original Mike said...

"ACA is hardly health care reform."

You got that right. It's doubling down on our failing status quo. How anyone thinks this is going to work is beyond me.

Scott M said...

ACA is hardly health care reform.

From your point of view, I would concur, however, that's how the Democrats sold it, continue to pump it up, and have in all ways that count to the electorate hung their hats on it.

Still waiting, RC, on a distinction between "private citizens" and other types of citizens. I'm truly interested. Please answer.

Bruce Hayden said...

You don't need auto insurance to own a car or drive a car only to drive it on a publicly owned roadway. The proper comparison to Obamacare is having someone who neither owns a car or has a driver's license be compelled to buy auto insurance just to lower the overall auto insurance rates.In other words, as a condition of living.

The supporters of the law seem to argue that everyone will, at some point in their lives, have to use our formal healthcare system. That is, of course, false. Most, maybe, but not all. There are plenty of people who consciously avoid such, whether from religious, or other, reasons.

But, possibly even more important here, there is a critical difference here between using the health care system, and using health care insurance to pay for it. There are a lot of people who pay as they go. Yes, some abuse the system, taking advantage of the fact that ERs cannot refuse to treat them. But others do actually pay for their care.

And, part of the problem with mandating universal health care insurance is that what is covered is, by necessity, a political decision. We are seeing that already with abortion coverage, and likely will see it with much more - expect that males and women who have had hysterectomies will have to pay for uterine and ovarian cancer screenings. That sort of thing. And, maybe psychological and substance abuse coverage. Oh, and for a lot of the slacker generation on their parents' policies. All of which drive up costs, making the exit of private companies for anything except Cadillac coverage that much more likely..

Tim said...

Just know that these GOP Prez hopefuls promised to repeal ObamaCare, without conditions, ON DAY ONE.

Pfft. GONE. On the first day!

Bruce Hayden said...

"ACA is hardly health care reform".

There are aspects of it that are supposedly aimed at making health care delivery more efficient and economical. They are, however, badly designed, and the most likely result will be Sarah Palin's "Death Panels".

But, of course, they were badly designed - the legislation was cobbled together in the middle of the night in relative secrecy, mostly by those who don't work in the field (and, worse, were mostly attorneys), and its passage was deemed too important to wait to work out all the myriad details first.

Scott M said...

There are a lot of people who pay as they go. Yes, some abuse the system, taking advantage of the fact that ERs cannot refuse to treat them. But others do actually pay for their care.

The HSA solution is the absolutely best, but policy-makers believe that there aren't enough mature adults in the country to handle it themselves. Thus, as a result, there aren't enough mature adults able to handle it. You get more of the behavior you reward, after all.

Face it. We're all lazy. Obama says so.

Scott M said...

absolutely = absolute.

(less is more)

Bruce Hayden said...

Another critical difference between the Individual Mandate and automobile insurance - automobile insurance is mandated by states, while the individual mandate is federal, Constitutionally justified through the Commerce Clause.

It is well accepted in our law that states and our federal government have very different powers. The federal government's powers are (supposedly) sharply delineated by our Constitution. States on the other hand have fairly extensive police powers, and don't need to justify laws through reference to power granting clauses in our Constitution. Thus, states can pass criminal laws against a lot of things that the feds cannot.

Which indirectly leads into another part of the Individual Mandate debate - whether it is a penalty or a tax. It is specifically called a "penalty" in the legislation, but many are arguing that it is essentially a tax, but the Dems couldn't have passed the legislation if it had been called a "tax" instead.

This mostly would not matter if this were a state law challenge.

Michael K said...

It's too much to hope that, in the event it is struck down, that Congress would try one of the sensible alternatives.

Bruce Hayden said...

You get more of the behavior you reward, after all.

This means that the more coverage you have, and the lower the co-pays, the more health care people are going to consume. Which, the Dems apparently figure is a good way to get health care costs under control.

Bruce Hayden said...

Let me add to my last (cynical) comment, that part of the basic problem with ObamaCare was that it ignored economic reality, in a number of ways. One of the most obvious is what I just talked about - that mandating coverages, deductibles, co-pays, etc. is guaranteed to drive costs up. Basic human nature. So, the solution on the left is a 2,000+ page bill and ultimately tens, if not hundreds, of thousands of pages of regulations.

We have already seen that this sort of approach cuts against a country of laws - for example, why did Pelosi's district receive so many health care waivers? So many big unions?

It, again, is pointing out the problems with central planning - one of the biggest of which is that people in the aggregate are far smarter than the bureaucrats ever can be or will be. So, for every plug for some evasion can be crafted by those bureaucrats, those regulated will find a dozen or more ways around such.

The basic idiotic premise behind ObamaCare is that the drafters and implementers were smart enough to plan 1/6 of our economy. They weren't, and will likely never be. And, hence, an epic fail.

Coketown said...

To sum it up, and to paraphrase Oscar Wilde, "For Obama, the only thing worse than the ACA being found unconstitutional is the ACA not being found unconstitutional."

DaveW said...

If the Court takes down the entire Act, it would do Obama a great favor, which is why I'm predicting the Court will do just that.

Really professor? You think the majority of the court will rule on Obamacare based on what would help Obama win election?

Surely you don't mean that.

machine said...

The individual health care mandate originated with the conservative Heritage Foundation, then was adopted by Newt Gingrich, was part of the republican platform in 1996, then was implemented by Mitt Romney in Massachusetts, and then supported by Chuck Grassley during the debate over health care reform in 2010.

But now it is a stake in the very heart of freedom...funny that.

DaveW said...

For what it's worth I seriously doubt the court acting on this helps Obama whatsoever no matter how they rule.

The simple fact of having it argued during the campaign will put it front and center. The candidates will have to address it, or in Obama's case likely dodge it repeatedly and attempt to vote present. The constitutional issues of limited government verse control by Washington elite will be aired in a way they haven't been since Reagan. What has been up to now a fairly limited debate will be held for a much broader audience.

Although the constitutional issue will be fairly narrow republicans will have a clear field and media attention to bring up every unpopular detail of the law.

Have the majority of voters faced the idea that the federal government is ordering them to buy a product from private for-profit (government approved no less, by partisan appointees) enterprises? I doubt that. My guess is outside the tiny minority of us that argue here and in places like this most people know little of the details.

Whether they uphold or overturn Obama will have to re-argue the thing all over again - or very publicly dodge it. And if they do strike it down then Obama and the Dems will be exposed as attempting to foist an unconctitutional grab of power of the most intrusive kind.

That isn't going to help him no matter how they rule.

Original Mike said...

@machine: I don't care who's idea it was; the idea that the government can compel you to buy any product it finds convenient is a stake in the very heart of freedom. But, personally, I am more interested in repeal of the mandate as a tool to kill something even more offensive; health care rationing.

Cedarford said...

Mike said...
Leviathan is too danged big. Anything that cripples the beast and keeps it where it belongs (with its foot off our collective neck) is a good thing.
=================
Which is why Norquistians are fine crippling the military beast rather than let the temporary tax cuts on the rich expire, in any compromise the the Leviathan.

Seeing Red said...

The Heritage Foundation was wrong.

There were other ways to go about it.

Cedarford said...

BarryD - "Take both Obamacare and Romneycare out of the equation, and Romney's campaign can be all-economy, all-the-time, and this is very likely to be a winning strategy.

Right now, Romney has no such luxury."

===============
The problem far right conservatives have is that there are states full of people that are not true believers like them, that don't think right, and want things like Romneycare 3-1.
Their hatred of Romney has nothing to do with Romneycare being imposed in Arkansas, because it won't be....it is that he worked with constituents in a pinko commie liberal Democrat state. Where water is flouridated and taxes are high. Making anyone North of the Mason Dixon Line or not hailing from rural Western enclaves a RINO!! - or far worse.

Quite similar to how the liberals and progressive jewish media of Manhattan and other enlightened enclaves like Austin and San Fran wish to shove their values on Flyover Country and spent a lot of time complaining that Bill Clinton was a DINO. From the "wrong place" serving a wrong-thinking constituency.

machine said...

Mike, the government cannot compel you buy just any product...just the ones you use and expect other people to pay for thereby making it a commerce argument(and by law cannot be denied the use of); and health care rationing takes place every day and has been rationed for years...

Original Mike said...

@machine - I'm on my way out the door, so I'll be brief.

Horseshit.

machine said...

So you want to pay for the freeloaders then... isn't that socialism?

RightKlik said...

I'm sorry, I just don't buy into the notion that Obama would be helped by SCOTUS striking down Obamacare.

The Democrats paid dearly for Obamacare in 2010. If Obamacare goes down in the Supreme Court, the political sacrifices will have been for naught.

Anyway, the upcoming elections aren't about Obamacare. They're about the economy.

Most importantly, Obamacare is such a serious threat to our natural rights, it needs to be defeated ASAP. If that helps Obama some way, so be it.