The Obama administration argues the insurance mandate is a valid way to address a national crisis in which the uninsured impose huge costs on the U.S. health-care system. It also says the provision is an essential part of the law's insurance reforms, which require insurers to accept all prospective customers, even if they have pre-existing medical conditions.
U.S. Solicitor General Donald Verrilli will be up first Tuesday morning, allotted an hour to make the administration's case to the justices. Two lawyers representing the challengers will each have 30 minutes to respond. Paul Clement, a former solicitor general during the George W. Bush administration, will argue on behalf of the state challengers. Michael Carvin of the Jones Day law firm will argue for the National Federation of Independent Business and a group of individuals challenging the law....
I'll have much more to say when the transcript of the argument becomes available.
March 27, 2012
Today's oral argument in the Supreme Court covers the constitutionality of the individual mandate.
This is the question most people have focused on: Does Congress have an enumerated power to regulate individuals who fail to buy health insurance?
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I find your comments and those of *some* of the commenters very enlightening, so thank you.
Professor A--appreciate your coverage--thanks and for those of us who are not lawyers, please keep any explanations in plain English and with your customary "cruel neutrality."
Professor if this bill is upheld in toto, with additional power over the states that the bill gives to the federal government coupled with an expanded commerce power coupled with the economic rational of Kelo and Raich can you imagine what a conservative-libertarian congress and president could do to the states and llocal governments under the guise that all economic activities have a national effect?
What is there to stop the feds from overiding rent control laws, restrictive zoning laws, state and local minimum wage laws, indeed any state or local legislation or regulation that has any economic effect?
The left in it's hubris and immaturity has the belief that economic thinking and history can only go one way, their way. Conservatives are generally wiser in granting government power that can in the future be used against them.
Conservatives might want to be a little more careful in what they wish for. If the court tosses the individual mandate that will leave national government provided healthcare as the only option. And we will within the next twenty five years have a universal system like every other developed nation. The current system will continue to erode.
One thing that makes me pessimistic that the Supreme Court will overturn the ACA, and that makes me appreciate Thomas over Scalia (and perhaps Roberts) is that Thomas refuses to buy into the elevation of "long settled" Supreme Court opinions to that of the Constitution.
In Thomas' view, the Constitution is the law of the land. Previous opinions, no matter how old and no matter how many times they have been reaffirmed, aren't. They matter, but far less so than the Constitution. Scalia doesn't seem to have the balls to go that far, and thus if he votes for against the constitutionality of ACA, it will be because he somehow distinguished this case from Raich and Wickard.
But this entire view of previous opinions having the same weight as the Constitution needs to be destroyed root and branch.
And please don't argue that "no one believes past opinions are the same as the Constitution itself." That is what every one of the scholars who argue that even considering whether the ACA is constitutional or not is ridiculous. Of course it is constitutional. Haven't you heard of Wickard?
If the mandate is found unconstitutional, could a suit remove the rest since a severability clause was intentionally left out? I don't see how it could stand without it.
I don't see how it could stand without it.
My understanding is that the budget for ACA falls apart with the IM.
Did anyone else read "Jones Day law firm" as "Davy Jones law firm"?
MadisonMan, you probably weren't referring to comments like this one!
It's an important day. I'm jittery.
If the court tosses the individual mandate that will leave national government provided healthcare as the only option.
The only option? Maybe if you deliberately ignore the option of the government getting less involved in health care and less involved in health insurance.
All that's left of the Constitution is the Commerce Clause.
All else is corollary.
If the court tosses the individual mandate that will leave national government provided healthcare as the only option.
Because, Jay, HSA's combined with catastrophic coverage are completely unworkable for most people, right?
My understanding is that the budget for ACA falls apart with the IM.
Hey, it is falling apart with it. Official estimates for its costs have doubled since enactment. Surprise, surprise.
What the proponents of the legislation refuse to acknowledge is that it was extraordinarily badly designed legislation. Thrown together in the middle of the night by a cabal of interested parties, and not allowed the light of day until after it had been voted on.
Scott, haven't the numbers already died, even with it, by minimizing the pathetic gimmicks Democrats had in the first place? True, no IM and it becomes exponentially worse, but its not like a single one of their rosy predictions has panned out yet.
The Obama administration argues the insurance mandate is a valid way to address a national crisis in which the uninsured impose huge costs on the U.S. health-care system.
Most uninsured are those who cannot afford to pay for insurance, so we are told. But the penalty does not apply to those who cannot afford it. Thus, we were told yesterday, the mandate does not apply to them.
Moreover, the Administration has conceded that the law does not accomplish the asserted goal --
JUSTICE ALITO: Suppose a person who has been receiving medical care in an emergency room -- has no health insurance but, over the years, goes to the emergency room when the person wants medical care -- goes to the emergency room, and the hospital says, well, fine, you are eligible for Medicaid, enroll in Medicaid. And the person says, no, I don't want that. I want to continue to get -- just get care here from the emergency room. Will the hospital be able to point to the mandate and say, well, you're obligated to enroll?
GENERAL VERRILLI: No, I don't think so, Justice Alito, for the same reason I just gave. I think that the -- that the answer in that situation is that that person, assuming that person -- well, if that person is eligible for Medicaid, they may well not be in a situation where they are going to face any tax penalty and therefore --
JUSTICE ALITO: No, they are not facing the tax penalty.
GENERAL VERRILLI: Right, right.
JUSTICE ALITO: So the hospital will have to continue to give them care and pay for it themselves, and not require them to be enrolled in Medicaid.
GENERAL VERRILLI: Right.
yesterday, p.50
I only reviewed the transcript from yesterday briefly. My thought was that the liberal Justices were not buying (too much) the argument that the jurisdictional arguments (AIA)should prevent the Court from hearing the merits of the case. TO me that shows they are somewhat confident that Kennedy will rule with them on the underlying constitutional argument.
I am very curious to hear how the Government handles the inevitable question of, in light of their reliance on the commerce clause, what limits are there on Governmental power? If they can require a person to participate in this form of commerce, what can't the government require. I think this is key in both the constitutional sense, and the ideological sense. Someone can correct me, but if we accept this line from the Government, there really is no limit to what it can do. And, if that's the case, those who support the Government's case really need to consider what the Republicans could require.
Unlimited power is great until someone else gets hold of it.
Remember, its not tyranny if we support it.
Whistling into the wind again, but ...
This is not about medical "insurance;" it is about establishing a national medical care program paid for with taxes lightly camouflaged as "insurance premiums."
A chief argument in favor of the insurance mandate is that everyone will be in the healthcare market someday and, if not insured, will pass the costs of his treatment onto others.
This argument is entirely bogus, for several reasons:
1. The same argument can be made for driving without automobile liability insurance. However, such insurance is not required in Wisconsin and New Hampshire, nor even in California or Texas, where there are alternatives, such as bonds, to compulsory insurance coverage.
2. An American who resides or even travels overseas for 6 months, say, though still subject to the Obamacare insurance mandate, will enjoy no medical coverage whatsoever (same as with Medicare now), and will be in a worse position than without the mandate, in that he will either have to pay his own medical costs overseas or pass the responsibility onto a foreign government.
3. Conversely, the foreigner visiting or living here, including illegal aliens, will not be subject to the mandate but will be entitled to medical treatment in emergency rooms, putting them in a better position than many Americans subject to the mandate.
Scott M.-HSA and catastrophic coverage would work but only with an individual mandate. That is why I am pointing out that conservatives should be careful about what they wish for.
"The Obama administration argues the insurance mandate is a valid way to address a national crisis in which the uninsured impose huge costs on the U.S. health-care system."
This argument is tendentious bullshit on stilts.
Everyone but the stupid and the delusional understand that total costs for everyone will increase, far surpassing the cost the uninsured impose "on the U.S. health-care system."
To me the notion of precedent law has and always will be preposterous. Each law should stand on it's merits against the constitution, regardless of how much similar law stacks before it.
"HSA and catastrophic coverage would work but only with an individual mandate."
Bullshit.
"3. Conversely, the foreigner visiting or living here, including illegal aliens, will not be subject to the mandate but will be entitled to medical treatment in emergency rooms, putting them in a better position than many Americans subject to the mandate."
Right.
Yet, this is inconsistent with Obama's general stance toward Americans, how?
While everyone focuses on the IM overlooked is the expansion of federal power over the states.
As for the mandate, the government being broke could under a future congress eliminate the excluded class. Sorry pal, no one rides for free.
which require insurers to accept all prospective customers, even if they have pre-existing medical conditions.
not exactly. tobacco users are excluded, and really for no good reason since premiums are built into the cost of tobacco. Fatties, the HIV positive, drinkers, the active, & others who have behavior related health issues might want to take notice of the iron rule: today me, tomorrow you.
The mandate is circular compulsion. Either buy into a contract with the government via compulsion or face a tax of $2500 per year which you have to pay via compulsion or go through the issues of not paying your taxes, aka asset forfeiture and seizure, leins, court, jail, etc.
So the government gives you no choice with respect to this law. Either enter into a contract or face a tax. How in the name of liberty is this constitutional?
Scott M.-HSA and catastrophic coverage would work but only with an individual mandate.
How so? Nobody mandated I do it. I did it because it was cheaper and gave me more control over my family's health care options. The only potential downside, from a tax-consumer (as opposed to a tax payer) point of view, is that it requires a lot of proactive responsibility.
How does making HSA's the norm require a mandate? As a followup, why don't you care about your own personal liberty?
Bender astute comment. With the SG's comment if upheld, hospitals could sue the federal government for compensation for being forced to pay for a public good.
Because, Jay, HSA's combined with catastrophic coverage are completely unworkable for most people, right?
I linked to this article by Richard Epstein the other day: Obamacare: An Unconstitutional Misadventure, where he says that "There are two major risks associated with writing any line of insurance: moral hazard and adverse selection."
ObamaCare has moved in just the opposite direction from high deductible plans filled by HSAs. Instead of giving people an economic incentive to conserve in their purchase of health care, instead, they are providing an incentive for overuse, presumably controlled through rationing. We saw this with Ms. Flake and her birth control "testimony". HHS is mandating not only that birth control be covered, but that it be effectively free to the insureds.
What the economists who back the legislation seem to forget is one of the things taught in Econ 101 - Supply and Demand. As the cost to a consumer of a good or service nears zero, the demand becomes near infinite. Or, at least goes up sharply. And, what is important to the consumer is not the cost to society, but their apparent cost.
The beauty of the high deductible plans combined with HSAs is that they took advantage of this economic law. If I didn't overuse health care over the year, I had money left over in my HSA, that I could use for other health related things that I thought were more important to me - such as a mouth piece from my dentist. Or, maybe even a deep clean, that my dental insurance wouldn't cover. Or, I could just save it up for a time when I needed the money more. And, women could decide what type of birth control they felt like affording, in comparison to their other medical needs and wants, such as whitening their teeth.
No longer. Instead, the only way that ObamaCare can keep from bankrupting everyone involved is through rationing, which means that unelected and unaccountable bureaucrats will be making those decisions for us, based on their own personal agendas, and political pressure by insiders.
"As a followup, why don't you care about your own personal liberty?"
He's willing to lose some of his personal liberty to gain control over yours.
There is a very easy answer to the free-rider problem --
Send them a bill.
If they obtain medical services, bill them.
That they may or may not have the money to pay such medical bills has not stopped the federal government from going after unemployed and underemployed people for tens of thousands and hundreds of thousands in student loan debts.
If they can send a life-crushing bill for educational expenses, they can send a bill for life-saving expenses.
But let's not forget:
"The individual insurance mandate...was the brainchild of conservative economists and embraced by some of the nation’s most prominent Republicans for nearly two decades. Yet today many of those champions — including presidential hopefuls Mitt Romney and Newt Gingrich — are among the mandate’s most vocal critics."
...and now it is the end of the free world...
This is not about medical "insurance;" it is about establishing a national medical care program paid for with taxes lightly camouflaged as "insurance premiums."
I don't read it that way. Rather, I see it as a way to destroy the private health care insurance market, forcing us into a socialized medicine system as a result.
It might be as you suggest, if the IM penalties were going to the insurance companies. But, apparently, they go to the general fund. So, what we will invariably have are more and more people not paying for insurance until they need it, but instead paying the IM penalty, then jumping in and grabbing insurance coverage when something goes wrong with their health. This are the Moral Hazard and Adverse Selection issues brought up by Epstein in that article I linked to. The pool of insureds is going to get sicker and sicker, as the healthy flee, which means that insurance premiums are going to be spread out over a more and more expensive pool of insureds. This will, by necessity drive up premiums. A lot. Which will drive more and more of the healthier people out. Which drives up premiums even more, etc.
The only way that this could work, even half way (and, it would never do better than that) is if the IM penalty were priced sufficiently high that it was cheaper to actually get the insurance AND the penalty money were to go to the insurance companies.
Which is why I think that either the designers of this Rube Goldberg contraption was intentionally designed to fail catastrophically, destroying the private health insurance industry along the way, or was designed so grossly negligently that its designers and those pushing its enactment should be jailed (or worse) to protect both us from them and them from themselves.
..regulate individuals who fail to buy.
Obamacare is the inevitable conclusion to a dance the congress and the Supremes have been on since 1936..
This morning, on Imus, Stewart Taylor said the Supremes have not turned down the congress (on anything this significant) since 1936.
The real question seems to me to be.. Why would the Supremes start turning them down now?
Anyone want to take bets on what will happen? I predict that the ACA will be upheld in its entirety, by a 6-3 vote, with Roberts and Kennedy joining the liberals. Roberts will write a very narrow opinion.
On that podcast link go up to 5:30 to listen to the relevant part.
"The individual insurance mandate...was the brainchild of conservative economists and embraced by some of the nation’s most prominent Republicans for nearly two decades. Yet today many of those champions — including presidential hopefuls Mitt Romney and Newt Gingrich — are among the mandate’s most vocal critics."
Well, there is theory, and then there is practice. Sure, they might have considered an individual mandate as a possible alternative to what we had in health care insurance at the time, but what they are opposing is the Rube Goldberg monstrosity that the Dems actually enacted. Even if it is declared Constitutional, it cannot work as designed.
It is just plain silly to think that someone is being hypocritical because they thought that something might work in theory, and now are pretty sure that its implementation enacted will fail catastrophically.
Conservatives might want to be a little more careful in what they wish for. If the court tosses the individual mandate that will leave national government provided healthcare as the only option.
My take on the whole thing is that there are far worse things than the individual mandate in the health care bill, and that in some ways it makes sense. That may be one reason why I can keep my cool when the non-RINOs start screeching about the evils of Romneycare.
The problem with the individual mandate is not the individual mandate -- it's the erosion of Constitutional rights that approving the individual mandate would portend.
Don't get me wrong -- I'm opposed to Obamacare. But I'm more opposed to giving Congress the right to tell me what I must buy. We need to start building a wall around the Commerce Clause, and this is a necessary step in keeping that wall. I have less of a concern if it's a state doing it, and could live with it, in fact, given it's a pretty good way to control the free-rider problem.
There is a little more to consider than just the beancounter costs.
The Government will also in minute detail specify what the medical treatments will consist of and how they are carried out.
For those who want to compare this with auto insurance - if a program like this had been instituted for auto insurance in the 1950's, we would still be driving 1959 Chevy's, Fords, and Plymouths - no other makes would be available - and we would be required to have them maintained at the dealers' shops - no independents or do it yourself shadetree mechanics allowed.
...and now it is the end of the free world...
And candidate Obama was steadfastly (as steadfast as Expiration Date Obama gets) against the mandate until he became President. What's your point?
By the bye, machine, did enough people sufficiently answer your "how was [Obamacare] 'spuriously passed'" from a couple days ago?
Yes, spuriously = 2 years of "middle of the night" debate....
I predict that the ACA will be upheld in its entirety, by a 6-3 vote, with Roberts and Kennedy joining the liberals. Roberts will write a very narrow opinion.
The alternative being 5-4 rejecting it as Unconstitutional.
But, you have a point, if it looks like the conservatives are going to loose Kennedy, Roberts may have an incentive to jump sides so that he can, as Chief Justice, control the opinion.
However, if Kennedy alone jumps, wouldn't that make him the senior Justice on that side? And, since he is probably the most likely to swing, wouldn't he be inclined to write a fairly narrow opinion? (As a note - the most senior Justice in the majority gets to control who writes the opinion, and the most senior Justice is the Chief Justice - after the Chief come Scalia, Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor, and Kagan, in that order).
Should be interesting.
@B.H.,
A distinction without a difference. You nationalize the financing, you also nationalize that which is financed.
("Murphy's Golden Rule.")
And your scenario won't happen. If the people prove recalcitrant, additional regulations will be promulgated and if necessary additional statutes will be passed, to make them see the light and fall into line.
Once the camel is inside the tent, it is not leaving.
Yes, spuriously = 2 years of "middle of the night" debate....
Extremely weaksauce if that's the best you've got. Watery, even.
However, if Kennedy alone jumps, wouldn't that make him the senior Justice on that side? And, since he is probably the most likely to swing, wouldn't he be inclined to write a fairly narrow opinion?
But if no one joins a Roberts opinion and the four libs join a Kennedy "concurring" opinion, the Kennedy opinion having the vote of a majority of the Court becomes the Opinion of the Court.
machine being the fool that he or she is believes that once someone has consider or taking a wrong or stupid position that person forever has to continue on that road. machine be careful what you wish for, if this abortion is upheld by the courts the next republican congress can eliminate all excluded parties to the mandate and just like colege loans make unpaid medical bills not subject to bankruptcy protection. that would be sweet.
tobacco users are excluded
Seriously? So people with all kinds of pre-existing conditions must be able to get insurance but smokers cannot?
I didn't know this.
Rather... but insurance companies are able to exclude smokers if they want?
The Government will also in minute detail specify what the medical treatments will consist of and how they are carried out.
I.e., rationing by Sarah Palin's "Death Panels".
Rationing is absolutely required by ObamaCare. The problem is that the entire legislative edifice is based on ignoring, or turning on their heads, the laws of economics. Costs and benefits are completely disconnected, and artificially low, to non-existent (in the case of Fluke's birth control pills) prices will, inevitably result in near infinite demand. There are no incentives, whatsoever, for anyone to conserve on the health care benefits that they demand - because what they pay will be totally disconnected from what they get. Econ 101.
The only, possible, solution to that basic economic problem, absent going back to the system that has worked fairly well for most Americans over the years, is rationing. And, as we have seen with the Sandra Flake birth control controversy, in many cases, rationing decisions are innately political.
The mandate was Grassley's position the summer it was adopted into the ACA...then, or course, he jumped ship when it was folded into the act to get repub votes...
they were afore before they were agin it...
If tobbaco is excludable why not add in drug and alcohol dependants, HIV positive, extreme sports injuries and maternity coverage. save policyholders a lot of dough.
Seriously? So people with all kinds of pre-existing conditions must be able to get insurance but smokers cannot?
Oh, I can't believe this for one minute. Tell me it isn't true.
Think about it for a minute. They would have to pay the mandate penalty, because they didn't have insurance, but couldn't get the insurance because they smoked. Almost to the point of fining them for merely breathing.
The advocates are (or should be) looking for a articulable limit to Commerce Clause power, if the legislation is upheld. Maybe this is it - that it would be unconstitutional if it were to require a smoker to pay the penalty just for breathing, having been denied coverage. But, that, I think would be an "as applied" challenge, as contrasted with the present facial challenges to the legislation's Constitutionality.
"because what they pay will be totally disconnected from what they get"
What do you think happens now?
People with insurance get every test suggested because they only pay the co-pay...don't blame ACA for that too...
People with insurance get every test suggested because they only pay the co-pay
Really? That's a pretty sweeping statement. Aside from the fact that doctors are practicing defensive medicine in most cases these days (I have three in the family, mind you), very few insurance policies simply ask you to pay a co-pay and then cover 100% of everything, as your ridiculous suggestion maintains. What do you think we all are? Members of Congress? United Autoworkers?
Tobacco users are not excluded from mandatory right to coverage.
However, insurers are allowed to charge them higher rates that the standard rates they must offer to all, including those with pre-existing conditions.
Really? That's a pretty sweeping statement. Aside from the fact that doctors are practicing defensive medicine in most cases these days (I have three in the family, mind you), very few insurance policies simply ask you to pay a co-pay and then cover 100% of everything, as your ridiculous suggestion maintains. What do you think we all are? Members of Congress? United Autoworkers?
I'm not a Congressman or UAW. I'm an employee, though, and my company pays for preventive stuff like mamograms and colonoscopies (as long as you are the age that requires those tests). Preventive health measures are seen as the magic beans here. If we all have mamograms and colonoscopies, we will catch our illnesses before it is too late, saving the company the cost of more extensive healthcare. Personally, I think that is wishful thinking.
The result is the same, whether employers insist on 100% covered tests or whether the government insists on it: the cost of the tests goes up.
Thanks for the clarification on the smoking, Rabel. Smokers are the ones we all are encouraged to hate, so it makes a certain amount of nonsense.
There are no incentives, whatsoever, for anyone to conserve on the health care benefits that they demand - because what they pay will be totally disconnected from what they get. Econ 101.
Bruce, Massachusetts offers an insight into how this will play out. Currently it takes 1 to 2 months to see a doctor on an office visit. Emergency room visits have increased steadily (not declined, as promised) because people would rather go there and get immediate treatment rather than wait 1 to 2 months. Even with a $75 copay for ER versus a much smaller copay for an office visit.
Also, it is reportedly hard to find a doctor who will take new patients. There aren't more doctors entering the field just because of govt-run healthcare. In fact, it could be less as it becomes a lower-paying profession due to all kinds of price caps.
The brake on the whole overuse of benefits will be long wait times and too few doctors.
Some time ago, I read an article claiming that cost-shifting doesn't really happen the way conventional wisdom says it does. The uninsured don't leave the rest of us with mountains of unpaid bills, which hospitals compensate for by setting higher fees for everyone else. When you consider that the uninsured pay grossly inflated charges, compared to the "negotiated discounts" for health insurance plans, even if they're good for only half the charges, they come out about even.
I don't know if this is true or not.
But the government's argument is that EVERYONE eventually has high medical bills that are either paid for by health insurance or by stiffing the healthcare providers. Would their arguement hold up if, correcting for the inflated fees the uninsured are charged, only a small number of uninsured land in the hospital and aren't good for their bills -- if the real cost of such bad debt is, considering the whole population, no bigger than the bad debt of people defaulting on mortgages or credit cards or student loans?
The brake on the whole overuse of benefits will be long wait times and too few doctors.
LIBERALISM! IDEALS SO GOOD, THEY MUST BE MANDATORY!!
Incidentally, the way to fix the whole thing is to move from the complicated structure with subsidies, mandates, penalties, exchanges, minimum coverage, etc., to a simple tax + voucher system. Raise income tax by x% at all levels, and provide everyone with an age-and-sex rated voucher that can be used at any health insurer. The voucher will be set at a sufficient amount to produce a high-deductible plan. For those who can't afford the expenses before meeting the deductible, states can expand the existing network of sliding-scale clinics. No mandate, just the ordinary, constitutional taxing and spending power.
Hagar said...
There is a little more to consider than just the beancounter costs.
The Government will also in minute detail specify what the medical treatments will consist of and how they are carried out.
A valid point, of course. But there is also the consideration that your behavior affects medical costs to society, and is therefore fair game for regulation. This is what is coming, and what I believe is the actual objective of legislation like the ACA. You can begin a list of behaviors that affect medical costs, but you can never end it. Once in charge of your health care, costs to the government will skyrocket and any and all means will be taken to lower those costs. Smoking will be one of the first things to be banned, or taxed out of existence. Seriously, folks, any behavior not countenanced by the majority of Congress can be and will be banned, and the ACA will be the pretext.
Jones Day is my daughter's firm. She is up for partner next year. She once ran for office as a Democrat. I think she lost because she is white. Her opponent made a point of it.
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