March 26, 2012

The big week of Obamacare oral arguments begins with "the most boring jurisdictional stuff one can imagine."

It's like "a kind of practical joke that the court is playing on the public," says Paul Clement (who represents the 26 states that are challenging the law). (Personal note: I teach the law school course Federal Jurisdiction, and this "anti-injunction" topic — by chance — is up for discussion this week.)
In the Supreme Court, the administration suggested that the justices appoint an outside lawyer to argue that the [Anti-Injunction Act] bars the challenges. The justices asked Robert A. Long to do so, and he goes first on Monday.... Mr. Long says the 1867 law is “jurisdictional,” meaning it forbids courts to hear suits even if, as here, neither side objects....

In the health care law, Congress called the required payment a penalty rather than a tax. But the penalty is contained in the Internal Revenue Code, and the health care law says it is to be “assessed and collected in the same manner” as a tax....

[Solicitor General Donald B.] Verrilli’s argument that the penalty is not a tax for purposes of the 1867 law is in potential tension with one he will make on Tuesday, that the mandate was authorized not only by Congress’s power under the commerce clause but also by its power to levy taxes.
It's not a tax whenever you don't want it to be, and it is when you do. That's the administration's argument! And that's what the NYT — in the linked article by Adam Liptak — calls "potential tension." (Cue the comments: This is why people hate lawyers.)
Mr. Verrilli argues that the name that Congress gave the payment required for violating the mandate in the health care law —a penalty, not a tax — matters for purposes of the 1867 law but is irrelevant in connection with the constitutional taxing power, where “it is the practical operation of the provision, not its label, that controls.”
See how easy it is to dissipate the tension? Why, it's an orgasm of tension relief! The old law refers to things designated a "tax," but Congress chose not to call the penalty a "tax." To call it a tax would have further inflamed the political opposition to the health care bill. Now that the bill has passed, however, we can coolly examine what it really is, and what it really is is what counts when the question is whether Congress has an enumerated constitutional power. It really is a tax, so it's within Congress's power to tax. That's the argument.

Isn't it fascinating how everything works to bulk up the power of Congress? Congress built political support by not saying tax when the bill was up for a vote, and it claims constitutional power by saying tax at the point when the Court is analyzing the bill after it is passed. What's most frustrating about this it's-not-a-tax-it-is-a-tax turnabout it that when the Court interprets Congress's powers, it exercises restraint, deferring to the political process, because that's where policy decisions are properly made. But  it was at the political, policy-deciding stage where Congress hid the reality of this massive new TAX.

But today is only about the Anti-Injunction Act, and it's key that the challenge is to the requirement that everyone buy health insurance and not just to the penalty that is imposed on those who don't meet the requirement. The requirement isn't a tax, even if the penalty is a tax. But it seems that the Taxing Power argument depends on the characterization that all we really have here is a tax, that the mandate is actually nonexistent. As I was saying the other day, that makes a lot of sense: The penalty is so small in relation to the cost of buying insurance that the requirement operates merely to define who owes the tax.

And yet, when Congress was passing the bill, the people never understood it that way. It was utterly hidden under an incomprehensible mass of text and propaganda. There was no transparency. It rankles to think that Congress could acquire this dramatic power by a monumental political deception. But will this shake the Court out of its usual position of comfy restraint? Perhaps we'll get a hint of an answer today, as the Justices react to the lawyerly contortions around the Anti-Injunction Act.

82 comments:

Rusty said...

Because nothing screams."Liberty" quite as much as eliminating choice.



"Gimme my free shit!"

Bob Ellison said...

Try to climb inside the mindset: it's not a tax, because nobody wants new taxes. It's not a fine or penalty, because it's absurd to criminalize inaction. It's just...something that needs to be done.

Pogo said...

Words mean whatever they want them to mean, whenever they choose.

The US Constitution of Bullshit.

SGT Ted said...

Thats really just a very long way to say that Obamacare supporters are relying on lies to win their arguments.

Rusty said...

Or...........



garage mahal said...
Who but a Class A moron doesn't know that Medicare is subsidized?

Your position, and the position of insurance conglomerates, and the politicians they pay off, are identical. They are laughing at idiots like you all the way to the bank, as they scheme to drain you for every penny they can, while denying you everything you paid for. This country can do anything it wants to. It can easily provide a quality affordable health care system for everybody. It just doesn't want to. Why? We're a stupid country full of stupid people like you.


How's THAT for a mindset, Bob?

Scott M said...

This is why people hate lawyers.

bagoh20 said...

Do we really need the two separate words "deception" and "lawyering"?

Imagine the improvement if most of congress was inhabited by plumbers or gardeners or human beings.

Roger J. said...

Professor A: There is a good post on the subject at Volokh, although it tends to get bogged down in "hypotheticals." Since IMNAL, I would appreciate your views on the major issues as the oral arguments go forward. You do have the ability to reduce the legalese into lay terms for which I am eternally grateful.

On a different but related subject, I am simply not sure why the SCOTUS would take this case in the middle of a presidential campaign. The downside to doing that is that inserts SCOTUS in what in my judgment should be a political argument which would probably become much clearer after the November elections.

Finally: would rather read you musings than listen to the excrable Nina Totenberg on the issue.

MadisonMan said...

I teach the law school course Federal Jurisdiction, and this "anti-injunction" topic — by chance — is up for discussion this week

That's like teaching intro Weather and talking about hurricanes when Rita is making landfall. It's great when real life offers up an example for the classroom in a timely manner.

Or talking about Climate during a heat wave of once-in-a-lifetime proportions.

Scott M said...

The downside to doing that is that inserts SCOTUS in what in my judgment should be a political argument which would probably become much clearer after the November elections.

I would agree to a point, but the process is the process. The political aspect of this was played out back during the sausage-making in 2009. We're now on to the legal aspects being argued before the highest court in the land. The fact that there will be political ramifications of the latter is secondary to the process itself.

Pastafarian said...

I'm not sure that 2% is as tiny a tax as you think, Althouse. I own an S-corp, and the company's income goes onto my income. That 2% would be over $10,000 during a good year; and that's just for our relatively small business.

Of course, I have insurance -- for now. Wait til our insurance company realizes that we're essentially required, now, to stand pat with our current carrier and policy, so that our coverage will be grandfathered in, in future years, and not considered "Cadillac".

They will bend us over and give us a good rogering, is what will happen.

(No offense, Roger J.)

Lem said...

All we are saying is give the North Koreans system a chance..

Dan in Philly said...

While the public cannot understand deep and subtle constitutional arguments, any fool knows that when you call something a tax and not a tax, you are full of garbage. If O care is not overturned, imagine the ads flooding the airwaves.

Pogo said...

Do lawyers who make these kind of arguments have any sense of shame at all?

I understand how venomous liars like John Edwards can invent voices from the dead as reason to give him millions on fees, but is that level of chicanery acceptable to well-educated attorneys? Really??

Damn.

I am increasingly filled with loathing and disgust for the law and politicians.

Every word they say is a lie, part of a lie, or in service to a lie. No wonder Obama is their hero, the Superman of total bullshit.

Roger J. said...

None taken, Pasta--at least you didnt say I was "nigardly." :)

roesch/voltaire said...

Of course we all dislike mandates, and I hope that part of the law is tossed out while keeping some of the good aspects such as allowing parents to keep their children covered until 26, or protecting those citizens with pre-existing conditions from being denied insurance. Actually I think the number of free-riders will represent a small number, and there is not need to tax, oh I mean fine, them as their payments will be far larger when they may suddenly need health care.

edutcher said...

Cavuto laid it out this way on his show, but, except for you, that's the only place I'd heard it.

And thank you, Madame, for putting it in English for us non-lawyers.

(when The Blonde was marketing her Legal Nurse Consulting practice, she'd always pitch explaining hospital charts and medical records to lawyers as translating "medical-ese"; this is the reverse, I guess)

Ann Althouse said...

Personal note: I teach the law school course Federal Jurisdiction, and this "anti-injunction" topic — by chance — is up for discussion this week

So all you need to do is turn on C-span and add pithy comments.

(back in the old days, when the networks would go wall-to-wall on a military or foreign policy crisis, we had a teacher who did that)

Isn't it fascinating how everything works to bulk up the power of Congress?

More like each branch tries to aggrandize itself, but, yes, quite so.

And yet, when Congress was passing the bill, the people never understood it that way. It was utterly hidden under an incomprehensible mass of text and propaganda.

Precisely. This is why Pelosi Galore told us, "We have to pass it to see what's in it". Even she understood if people got a look at this monstrosity, they would have descended on the Capitol with shotguns (as opposed to pitchforks and torches).

Quayle said...

Do lawyers who make these kind of arguments have any sense of shame at all?

They live in a bubble with each other.

They get so caught up in how good they are at building bridges, that they utterly lose sight of the fact that they just built a bridge for the enemy over the river Kwai.

Unknown said...

I thought one of the reasons it was “Not a tax” is because of the manner it was finally passed using the reconciliation process instead of a senate vote, which required 60 to avoid a filibuster. With the death of Senator Kennedy and his Republican replacement, the leadership adroitly circumvented this by using a reconciliation procedure. So if it were a “tax” the actual bill would not have been pasted according to Senate rules and therefore the whole law would be mute.
Obviously I am missing something here since no one else has made this point.

Pastafarian said...

Oh, and in case anyone thinks I'm a big-shot -- no, I don't make half-a-million dollars per year.

That's the company's net, during a good year. It's the company's money, not mine, and whatever is left after paying nearly 30% total to the federal government goes back into our general account, to keep us going during a less-good year.

So that extra $10,000 is big money to me; and even to our company. Of course, I expect the portion of the insurance premiums that our company pays to go up by about $40,000 this August. At this rate, this might be the last year we're able to offer insurance to our employees. By 2014, we certainly won't be able to afford to.

We have one employee whose son has major heart problems; another whose son has a serious chronic disease. We have many people who have been with us for decades paying into their insurance (and not getting much out of it) who will only now, when they're old and frail themselves, have that rug pulled out from underneath them.

It makes me sick to my stomach to think about it.

Roger J. said...

I think I understand the usefulness of hyopotheticals in that they make jurists understand the unintended consequences of their rulings. I guess my question is, hypotheticals notwithstanding, is that an appropriate level of analysis for SCOTUS decisions.

Tank said...

Pogo said...

Do lawyers who make these kind of arguments have any sense of shame at all?


Obviously not. And I've seen much worse bad-faith arguments than this.

On the other hand, I don't agree to make every argument a client wants me to make, and I don't represent every client who seeks to retain me. And, I'm not the only one.

Pogo said...

It used to be that physician and legal hucksters were seen to sully the profession.

Now they rise to the top.

Dr. Oz, for example. Or Obama.

Makes me ashamed of the age we live in.

PackerBronco said...

Of course we all dislike mandates, and I hope that part of the law is tossed out while keeping some of the good aspects such as allowing parents to keep their children covered until 26

Oh for the good 'ol days when 26 was considered an adult.

If 40 is the new 30, I guess 26 is the new 16.

Hagar said...

Can SCOTUS cite Congress for contempt of court?

Scott M said...

Oh for the good 'ol days when 26 was considered an adult.

If 40 is the new 30, I guess 26 is the new 16.


When undergraduate colleges became very expensive daycare, it was inevitable that we would get to this point.

Michael said...

When will they begin to deliberate the free contraception that the women need?

Roger J. said...

Hagar: would that they could, but I think President Jackson said it best: Mr Marshall has made his decision, now let him enforce it--separation of powers is the best thing the founders did in our constitution.

edutcher said...

bagoh20 said...

Do we really need the two separate words "deception" and "lawyering"?

It's an adversary system and the idea is to win, not necessarily "find the truth", as you see on the lawyer shows.

This is why lawyers learn to finesse ideas and twist words.

And find loopholes.

old line from "Maverick":

legal clerk: Do you want me to put in the usual number of whereases and wherefores?

lawyer: No, better cut it to half. I need to understand this one myself.

Christopher in MA said...

"Of course, we all dislike mandates,"

Who's we, white man? The left has no problem with mandates and diktats. And the right has a constant - and losing - fight to keep the big-government RINOs from imposing their idiocy on the population.

"and I hope that part of the law is tossed out while keeping some of the good aspects such as allowing parents to keep their children covered until 26.. ."

Only in a country devoted to free shit could a person of 26 be considered a "child."

A goddamn nation of Sandra Flukes, that's what we are.

Bruce Hayden said...

Of course we all dislike mandates, and I hope that part of the law is tossed out while keeping some of the good aspects such as allowing parents to keep their children covered until 26, or protecting those citizens with pre-existing conditions from being denied insurance. Actually I think the number of free-riders will represent a small number, and there is not need to tax, oh I mean fine, them as their payments will be far larger when they may suddenly need health care.

Not sure if I understand you here. Richard A. Epstein today in Obamacare: An Unconstitutional Misadventure who pointed out that:

Worse still, the ACA deals heavy blows to the private insurance market on the consumer side. There are two major risks associated with writing any line of insurance: moral hazard and adverse selection.Moral hazard states that the presence of insurance tends to increase the probability and severity of the insured event. It is to counter just this risk that insurance policies contain provisions that deny coverage in cases of serious misconduct. Those safeguards are utterly absent in the ACA, so we’re likely to see some increase in health-care costs, against which insurers are helpless to take precautions.

The greater danger is the risk of adverse selection. Typically, insureds know more about their conditions than their insurers. Therefore, they will pounce on insurance at bargain prices, knowing that the expected costs of their losses are far greater than the paltry premiums they must pay. To combat that risk in voluntary markets, insurers exercise underwriting discretion: They require health-care examinations to pick up latent conditions; they exempt preexisting conditions from coverage; they turn down some risks that are just too large to take.

The desire for universal coverage led the ACA to strip health-insurance companies of these defensive procedures. All health-care plans must run on the principle of guaranteed issue, which requires the insurance company to accept all applicants in the order that they apply for coverage at a fixed rate, subject only to their capacity to handle additional files. To compound the basic problem, the ACA also ordains a system of guaranteed renewability of insurance coverage: Once on the books, the party can stay there as long as he or she likes, so long as standard premiums are paid.

The effect of these provisions is that they give people all the wrong private incentives for dealing with their own health. It pays to be a little bit less careful in taking care of your own health when you know some health plan will have to take you in. More importantly, the basic structure of the ACA invites people to sign on to the best health-care plan around just before they need an operation, only to sign off from coverage the moment that risk has passed.

Bruce Hayden said...

Dr. Oz, for example. Or Obama.

Except that Oz still portrays himself as a physician, and Obama never really practiced law (though, apparently he taught it - at least profs in med school try to practice the profession they teach, much less so in teaching law).

I think that Oz used to be almost ok, before he found that he made a lot more money running a TV fat farm. His show has seemingly devolved into trying to exhort overweight women, who are overweight because they sit in front of the TV end eat, to lose weight.

Now, if you are really trying to point out miscreants in your field, how about Dr. Phil? Doesn't he routinely psychoanalyze conservatives like Sarah Palin without ever meeting them, based on what the liberal media says about them?

cubanbob said...

The income tax was sold as applying only to the very wealthy and it would onlly be a paltry 4%. How did that work out? Once passed any tax can be increased.

Since we all die, why not mandate that everyone purchase life insurance, why risk the free rider issue of leaving debts unpaid and family members without resources?

We all run the risk of being disabled, why not mandate disability insurance and avoid the free rider issue?

If we live long enough at some point we can't work and provide for ourselves so why not mandate retirement annuities and avoid the the risk of being free riders?

If we live long enough to get very old we will need long term care so why not mandate long term care policies and avoid being free riders?

Why not mandate home owners, flood, wind and earthquake insurance even if your home is fully paid for since if such an occurence were to happen one would be homeless and potentially a free rider?

Rusty said...

Obviously I am missing something here since no one else has made this point.

Hence the whole,"Got to pass it to know what's in it."

Of course it's a tax. You have no choice but to pay it or face penalties.

Molly said...

This is a sincere question: If the payment is a penalty (like a fine) for committing the crime of being uninsured, how does the government prove that I've committed this crime. If it asks me if I have insurance I refuse to answer on fifth amendment grounds. How could the government prove my guilt beyond a reasonable doubt?

Am I missing something obvious here? Or is it not a criminal penalty?

crosspatch said...

"It's not a tax whenever you don't want it to be, and it is when you do. That's the administration's argument! "

Sounds a lot to me like the same argument Roosevelt used when Social Security's constitutionality was raised. It was sold to the people as a "pension" and sold to the Supreme Court as a tax.

Bruce Hayden said...

It's an adversary system and the idea is to win, not necessarily "find the truth", as you see on the lawyer shows.

This is the uniqueness of the American system. It has its good points and its bad points.

But, the one place where this is not supposed to apply is in the prosecution for crimes. Prosecutors will, of course, try for convictions. But, they are supposed to be motivated by the truth, and can get themselves in a lot more trouble by withholding evidence from their opposition than can other attorneys. I am talking suspension, and even disbarment some times, if they don't provide exculpatory evidence to the defense.

An interesting case some 20 years ago in CO. An ADA had fake records created for an undercover agent, who then sought representation by a dirty defense attorney. When the attorney accepted illegal guns for legal representation, he was arrested, and ultimately disbarred. But, the ADA was also sanctioned for dishonesty.

drozz said...

why don't we all agree with the president when he stated that the language does not constitute a tax?

seems to me like the justices have a way out by pointing directly to the whitehouse. payback for the SOTU union would be awesome.

AJ Lynch said...

Molly- I believe the law requres you report your insurance status on your tax return. That is how they determine if the penalty applies.

cubanbob said...

Bruce the democrats want to turn health insurance companies in to regulated utilities but without the burden of providing them a reasonable rate of return.

The democrats want to turn the states in to administrative provinces with the new medicaid mandates. So what happens when the first state opts out of medicaid because it can no longer afford it? Will congress rebate back to that state the medicaid taxes collected in that state?

Federal mandates that require non insurable events be provided requires a private party to bear the cost of a public good, so do the policyholders sue the government for compensation?

Then there is the contract law issue of forcing parties to contract under duress, there goes centuries of contract law.

Mandating insurance companies to cover non insurable events requies the company to enter a business it hasn't chosen to enter. So in the future if we do not graduate enough STEM graduates because to many otherwise qualified students go in to law or finance universities should be required to force applicants to take appititude tests and those qualified for STEM studies be mandated to major in those studies or not be accepted?

Where does this idiocy of mandates end?

Dust Bunny Queen said...

Molly- I believe the law requres you report your insurance status on your tax return. That is how they determine if the penalty applies

Yes. But how are they [the IRS] going to verify the existence of insurance for every person and tax return in the US? What if we all just lie? Do we go to jail? or just pay the fine?

Robert Cook said...

Dave Lindorff at Counterpunch offers this leftist perspective today on why Obamacare should be killed:

http://www.counterpunch.org/2012/03/26/why-the-supreme-court-should-kill-obamacare/

tim in vermont said...

I can't see how they can say to the public that it is not a tax in order to get it passed, then once passed disown their own words.

This argument is fundamental to democracy, if words can be redefined after the making of a law, then any law can mean anything. This is much bigger than Obamacare. I could live with Obamacare, but not with a government with absolute power to define the meanings of laws at a whim.

Just Lurking said...

"for committing the crime of being uninsured"

Good questions.

Does this law makes people criminals if they find themselves in a position where they cannot afford to buy health insurance but cannot qualify for Medicaid; or if they simply don't want insurance and prefer to pay out of pocket?

Or maybe it doesn't make them criminals, since they are not required to buy insurance, and they can just pay a penalty - that isn't really a penalty since they did not break any law, but instead they are paying a tax- that is not really a tax because people don't like taxes, plus it is silly to tax people for not doing something that is not illegal not to do- wait... what? I'm lost...

The law is an illogical, ludicrous piece of crap and if people had any sense they would vote out every representative that voted for this turd. And "pelosi" should be made synonymous with "lying sack of shit", as in "you are nothing but a stinking pelosi".

Patrick said...

It rankles to think that Congress could acquire this dramatic power by a monumental political deception.

This is what those favoring the bill need to think about. They need to imagine the worst that the other side would do with this sort of power before deciding that yes, they want the Government to exercise this sort of power. Unlimited power is just fine, until someone else gets it.

cubanbob said...

As far as I know, the penalty can't be enforced ( for now) so it's an admonishing and neither a tax or a penalty. The democrats in trying to sell this pig were too clever by half.
Its obvious the justices are mad that they have to deal with this now instead off until the bill takes full effect, they know they got dragged in to this years election politics.

bgates said...

Of course [I] dislike mandates [on me], and I hope that part of the law is tossed out while keeping some of the good aspects such as [imposing mandates on the other guy].

Hagar said...

Roger,

So, if not Congress, can they go after the Solicitor General?

(see Bruce Hayden above)

Molly said...

Thanks to AJ Lynch and others for responding to my questions.

I still remain a little puzzled: can the gov't require me to testify against myself (by reporting my insurance status)? I must report my income for taxes, but that, in and of itself is not an admission of guilt -- it only becomes a crime prospectively if I fail to pay the tax.

This appears to be a retrospective admission of guilt, and I wonder how I can be required to report that.

Pianoman said...

'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less.'

'The question is,' said Alice, 'whether you can make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master — that's all.'

Balfegor said...

And yet, when Congress was passing the bill, the people never understood it that way. It was utterly hidden under an incomprehensible mass of text and propaganda. There was no transparency.

I don't think this is quite fair. Just because the President and all his fellow Democrats got up on stage and TV and made believe it wasn't a tax doesn't mean people were actually fooled. I mean, I would hope the public understands they're just common-or-garden politicians -- of course they were lying.

Scott M said...

I would hope the public understands they're just common-or-garden politicians -- of course they were lying.

From my vantage point up here in the mere foothills of Olympus (not the summit, mind you, not yet), the astonishing parade of dishonesty is what drove the tea party's coalescing and the historic results in November 2010.

Most people can stomach lies they want to hear and this usually holds true for all manner of people. However, very few can stand outright hypocrisy. Very little else short of actual violence can stir people up as much as blatant hypocrisy.

Roger J. said...

Hagar--I am sure Bruce Hayden can correct me, and I am big fan of Bruce's analyses, but the only authority supreme court is a moral authority--the executive branch is on the hook to execute SCOTUS judgements as far as I know. But is an interesting question.

Roger J. said...

Oh--and lets assume I spelled judgments correctly less the language police come down on me. Too easy to slip that damn "e" in the word.

bobby said...

"This country can do anything it wants to. It can easily provide a quality affordable health care system for everybody. It just doesn't want to."

There's no "it." There's just "us." And we don't care if we could provide free health care for others if we wanted to. We already provide tons of free stuff, far more than we think is necessary or fair. So, no, we don't want to.

This is all going down as farce. The insurance companies are lined up for this, thinking that they'll have a guaranteed conscripted customer base for a profitable premium. They assume that BHO will set his minions up into the death panels right away and thus keep their outlays down.

They're fools, but greedy fools, so scruem. What's really going to happen is, BHO will set his minions into demanding that everything requested be covered, putting insurers' costs far above their premium income, and quickly bankrupting them.

Thus, single payer.

If you work for a med insuurer, start looking for work now.

Lawrence Person said...

Evidently, ObamaCare behaves just like light, which sometimes acts like a wave, and other times like a particle. So ObamaCare is a tax Tuesdays, Thursdays and Saturdays, but not Mondays, Wendays, and Fridays. (And Sundays, as well we all know, ObamaCare acts like a state-mandated contraceptive...

walter said...

Roesch:
"Actually I think the number of free-riders will represent a small number, and there is not need to tax, oh I mean fine, them as their payments will be far larger when they may suddenly need health care."

Is this completely tongue in cheek? Without a mandate, just pay the lower penalty until you have an issue and then apply for undeniable "insurance". Actually, the ongoing goal is to remove the term insurance and replace it with "health care"..which it more accurately becomes without a mandate. But then Obama made some darn good arguments against mandates..when he was campaigning and promising to skyrocket energy costs. Good times.

ErisGuy said...

And to think our Founding Fathers started a war over a mere Stamp Act.

Scott M said...

They're fools, but greedy fools, so scruem. What's really going to happen is, BHO will set his minions into demanding that everything requested be covered, putting insurers' costs far above their premium income, and quickly bankrupting them.

Speaking as one who has three doctors amongst the inlaws (one ER doc, one pediatrician, and one eye surgeon), all of which have been in private practice at one time or another, you're missing a step.

It doesn't go straight from medical insurance failing to single-payer. That's the stuff of pixie dust and unicorns. All three docs have told me that they could go back to direct billing and do it with about 1/3 the staff they need to ride herd on dozens of different insurance company contracts. If they can get enough providers covering enough services (ie, the labs, radiology, etc) in the immediate area to do the same, the transition wouldn't even be noticeable to most people and may even end up being cheaper.

Even the pediatrician, a die-hard feminist and supporter of BHO admits this and thinks ACA is a disaster for her chosen field.

ricpic said...

If the federal government mandates that a citizen enter into a contract with a health insurance provider, doesn't that make the contract a coerced contract? And shouldn't that alone render Obamacare unlawful?

bobby said...

"If they can get enough providers covering enough services . . . the transition wouldn't even be noticeable to most people and may even end up being cheaper.

Even the pediatrician, a die-hard feminist and supporter of BHO admits this and thinks ACA is a disaster for her chosen field.
"

You lost me.

Your points seem to be (a) docs could go back to direct billing with some organizational work, and it might even bring down costs, (i.e., this might work) and (b), it'll be a disaster (i.e., this'll never work.)

What did I misinterpret?

AJ Lynch said...

"This country can do anything it wants to. It can easily provide a quality affordable health care system for everybody. It just doesn't want to."


Can you tell me how you would define "affordable"?

Robert Cook said...

"And to think our Founding Fathers started a war over a mere Stamp Act."

That was hardly the only reason.

AJ Lynch said...

DBQ:

Let's face it- with computers today- they could require insurers to send insurance rolls to a central processor who would manage a database of who and who was not insured in a particular year. I always thought they would have done that by now for car insurance so a cop could just swipe your magnetic card to see if your car insurance was in force.

Of course, the DEMS don't want that because it would hurt the poor and illegals I assume. So,m this latest healthcare mandate will put the ACLU libs in a knot.

Mike Koenecke said...

One of my favorite quotes: "Our adversarial system is founded upon the curious premise that, out of the clash of lies, truth will emerge." One of the main reasons I am not a litigator.

Scott M said...

@bobby

What did I misinterpret?

My sister-in-law, an Obama supporter (fervently) acknowledges that direct billing would be cheaper than what we're doing know, both in terms of her costs of doing business and to her patients. Aside from this, she believes ACA, ie, Obamacare, is a disaster.

Tim said...

"Of course, the DEMS don't want that because it would hurt the poor and illegals I assume. So,m this latest healthcare mandate will put the ACLU libs in a knot."

No it won't. Less than half the workforce (let alone adults) pay income taxes. Those who pay will be required to provide an IRS Form XYZ proving health coverage.

Those who don't pay income taxes (less than $9K Single/$19K Married, Filing Jointly) won't have to file, nor provide proof of insurance (notwithstanding the fact they would be eligible for highly subsidized coverage through the exchange).

Illegals, of course, don't file income taxes, for obvious reasons.

Bruce Hayden said...

Hagar: would that they could, but I think President Jackson said it best: Mr Marshall has made his decision, now let him enforce it--separation of powers is the best thing the founders did in our constitution.

Hagar--I am sure Bruce Hayden can correct me, and I am big fan of Bruce's analyses, but the only authority supreme court is a moral authority--the executive branch is on the hook to execute SCOTUS judgements as far as I know. But is an interesting question.

At one level, yes, all the Supreme Court has is its moral authority. The last time that Separation of Powers really got interesting was when the left went after Bush for purportedly violating FISA. And, there, it would have been hard to stop the Executive Branch through court action. The Judiciary could rant and rave as much as they wanted to, but there was little they could do to shut down the NSA, if the Executive Branch decided to play hardball, which they appeared to be willing to do. After all, the Judiciary is dependent upon the Executive Branch to enforce its will - those U.S. Marshals report indirectly to the President. And, the result, to some extent, was a stale mate.

This, though, is different, because the court system would be required to enforce the law and make it work. If an insurance company refused to cover someone due to pre-existing conditions, the recourse of both the person denied coverage and the Executive branch would be through the court system. And, the court system, below the Supreme Court, is compelled to follow the dictates of the Supreme Court. Outside of maybe the 9th Circuit, the lower courts are not about to try to enforce a law that the Supreme Court has invalidated. Maybe a District Court judge or two, but they will get slapped down by the Circuit Courts (excluding, again, maybe the 9th Circuit, which gets slapped down a lot by the Supreme Court for ignoring their dictates).

And, that doesn't even get into the Civil Rights and Due Process issues of the Executive trying to enforce a law declared unconstitutional by the Supreme Court. Sure, AG Holder isn't going to arrest himself, or probably anyone below him, for this. BUT, that won't keep the courts from finding a civil rights violation from trying to enforce a law against people and companies that has been declared invalid by the Supreme Court. So, maybe they don't go to jail for this, but are bankrupted for it instead. And, what is Holder going to do then? Put a U.S. Marshal in every bank to keep the winning plaintiffs from enforcing their judgments?

Which is to say that the court system in general, and the Supreme Court in particular, has a lot more actual power here than they did against the NSA under the Bush Administration.

Sorry if I didn't quite answer the questions asked. I tried, but may not have understood them properly.

WilliamC said...

A penalty is a tax on doing wrong.

A tax is a penalty on doing well.

bobby said...

"The last time that Separation of Powers really got interesting was when the left went after Bush for purportedly violating FISA."

I thought that BHO's redefinition of "recess" was somewhat interesting, myself.

And the same issue arises in that regard: what to do about it?

Facially, it would seem that there's no recourse until someone is aggrieved by a decision of the NLRB, at which point they could sue to stay NLRB enforcement on the grounds that the Board hasn't been duly appointed.

At least, if there is a more direct way that BHO's move could be addressed, I don't see any Senators taking it.

Bender said...

JUSTICE ALITO: General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax.
Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?

GENERAL VERRILLI: No, Justice Alito
p.31

Time to just sit the hell down.

You would think that any person of any integrity would be ashamed to get up there and engage in such duplicitous games with the Court.

Q said...

Obamacare is a solution to a non-existent problem. Suppposedly it solves the problem of "free riders". But it is goverment which has created the free rider problem to begin with.

Government mandates that hospitals MUST provide healh-care to all, regardless of their ability to pay.

Government also encourages the existence of illegal aliens within the US, and they make up the majority of the "free rider" population.

Government is badly distoring the healthcare marketplace. It now proposes to address the problems it has created by futher distoring the healthcare market rather than by correcting its current mistakes.

In the absence of the two government policies listed above, the problem which Obamacare "solves" would vanish on its own.

AJ Lynch said...

Tim- you are right as to lower income persons. I was trying to say the DEMS and ACLU oppose national ID etc and that will conflict with the mandate enforcement which asks everyone for more and more personal info including if they had health insurance coverage.

walter said...

Money extracted by the IRS kinda hints at a tax...
And all those new IRS hirees are really hoping Kagan brings the good.

Balfegor said...

Re: Robert Cook:

That was hardly the only reason.

Yes, there was also the English East India Company flooding our markets with cheap tea, undercutting the price of the honest smuggled tea sold by upstanding colonial merchants.

And I guess there was something about taxation and representation in there somewhere too.

Bender said...

JUSTICE ALITO: Sub-section A says directly, "an applicable individual shall ensure that the individual has the minimum essential coverage." And you are saying it doesn't really mean that, that if you're not subject to the penalty, you're not under the obligation to maintain the minimum essential coverage?

GENERAL VERRILLI: That's correct.


Is this a fatal concession?

If the mandate applies only to those subject to the penalty, but the penalty applies only at then end of the tax year, at filing time, then there can be no "obligation to maintain the minimum essential coverage" at the beginning of that tax year.

Rusty said...

Yes, there was also the English East India Company flooding our markets with cheap tea, undercutting the price of the honest smuggled tea sold by upstanding colonial merchants




Not tea. Molasses.

Michael said...

It simultaneously is and isn't a tax.

It's Schrödinger's Tax.

cubanbob said...

Bender very clever but at some point in the tax year presumably you would have to have proof of insurance. I rather doubt the companies would sell one day policies that expire at the stroke of midnight on the last day of the tax year.

Besides if the individual isn't compelled for now to pay the penalty its neither a tax or a penalty which begs the question of it's constitutionality if the government is going to argue it's a tax or a penalty. Up to now payment of neither has never been optional so what the legal logic when it comes to defending this bill as either a tax or a penalty is something beyond the minds of the sane and sober.

Crunchy Frog said...

It simultaneously is and isn't a tax.

It's Schrödinger's Tax.


We had to pass the bill to find out whether it is.

Scott M said...

We had to pass the bill to find out whether it is.

Yes, but once it was passed, we had to look at it to find out what it is, changing it's nature yet again.

mrego said...

If it's a tax, what to call it? It is a 'Life Tax', a tax on life itself. If you are alive, you might pay it. Whether you are 1 month old, or 105 years old. EVERY MONTH of your life, you MUST certify that you have the mandated "insurance" or you pay.
I guess it goes along with the Death Tax. Soon we will have a Tax-Tax... for no special reason.