Will the SCOTUS rule Obamacare to be constitutional or not?

[gsvol]

I thought the majority on the board with vote the other way.

depends on what justice kennedy has for breakfast the morning of their vote

A Kagan recusal could play into the equation.

really no idea on how this is going to go down other than 5-4

I was very surprised at the 9-0 decision against the EPA, maybe there is more hope for our constitutional republic than I thought!

From what I have read, some conservative judges have ruled it is constitutional based on existing SC precedent (such as Raich) but that they would not have ruled it so if they had not been bound by precedent. Which of course, SCOTUS is not.

Can the government force you to buy brussel sprouts for your health?

Worth a read:

I honestly don't know. This debate is so politically charged and both sides are claiming so much I'm not sure what to believe at this point. In the absence of clear facts, I am inclined not to support any government mandate.

I'm with VBH, I wouldn't be surprised to see thing thing go 5-4 either way.

In order to rule it legal the court will have to overturn the district court and the appelate court rulings.

The appelate judge was very detailed (167 pgs I think) as to how he arrived at his decision, this will be considered closely by the SCOTUS.

Add to that the fact that the DOJ lawyers are putting forth a very weak argument when considering precedent, sort of like an apples and oranges argument.

 

[gsvol]

It may wind up 4-4. Kagan may well recuse herself when arguments begin (as she should). Lord what a cluster we're going to have if that happens.

Justice Kagan breaks federal law in order to force ObamaCare on American people

Supreme Court Justice Elena Kagan will be in clear violation of federal law by virtue of her decision to hear the Affordable Care Act case coming before the Supreme Court today.

Upon joining the other justices to hear oral arguments she will fracture the federal statute which DEMANDS that judges recuse themselves from participation in a case “where he has served in governmental employment and in such capacity participated as council, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.” (1)

And according to emails obtained by the Media Research Center as the result of a 2010 Freedom of Information Act lawsuit against the DOJ, not only did she advise DOJ attorneys and express opinions concerning the merits of ObamaCare, she lied to the Senate Judiciary Committee during her confirmation hearings by answering “No” when asked specifically if she had any involvement in preparing the government’s defense for ObamaCare. (2)

ObamaCare was signed into law By Barack Hussein Obama on March 23rd, 2010 while Kagan was United States Solicitor General, a month and a half before she was nominated to the Court. As Solicitor General it was Kagan’s sole responsibility to represent the Department of Justice and federal government in actions coming before the Supreme Court.

From the 'Flopping Aces blog;

On the first day of oral arguments in the case challenging President Obama’s national health care law, justices seemed skeptical that the individual mandate should be considered a tax — one of the main consitutional defenses being offered for the law.
To be clear, today’s 90 minutes of oral arguments did not concern the underlying merits of the case, but whether an 1876 law called the Anti-Injunction Act bars the Court from ruling on the suit at this time. Under the Anti-Injunction Act, people cannot challenge a tax in court until after they have paid it, something that would effectively punt the issue until at least 2015. However, there is some overlap between this question and the idea of whether the mandate is a tax, and justices on both sides of the ideological fence expressed skepticism that the mandate should be treated as a tax.

“This cannot be a revenue raising measure, because if it’s successful, there won’t be any revenue raised,” said Justice Ruth Bader Ginsburg of the mandate.

Another liberal on the court, Justice Stephen Breyer, said of Congress’s description of the fine for non-compliance with the mandate, “They called it a penalty and not a tax for a reason.”

Alito came in for the swoop:


Justice Sam Alito asked Verrilli whether he could point to another case in which courts identified something as not a tax for the purposes of the Anti-Injunction Act while still ruling it was a constitutional exercise of taxing power. Verrilli could not name any.
Bam!

First Obama said the mandate wasn't a tax, and then they said it is.

And now even the liberal judges of the Supreme Court are looking a bit wary on their argument.

From an attorney on another message board:

4. The Individual Mandate Threatens the Foundations of Contract Law

American contract law rests on the principle of mutual assent. If I hold a gun to your head and force you to sign a contract, no court of law will honor that document since I coerced you into signing it. Mutual assent must be present in order for a contract to be valid and binding.

3.The individual mandate cannot be justified under existing Supreme Court precedent.

The Supreme Court has never before granted Congress the unprecedented power to regulate inactivity under the Commerce Clause. If the Court sticks to its own precedents, it won’t do so now.

2. The Individual Mandate Rests on an Unbounded and Unprincipled Assertion of Federal Power

“there is no way to uphold the individual mandate without doing irreparable damage to our basic constitutional system of governance.”

1: The Individual Mandate Violates the Original Meaning of the Constitution

Yet in its decisions in both Wickard v. Filburn and Gonzales v. Raich, the Supreme Court held otherwise, allowing Congress to regulate the wholly intrastate cultivation of wheat and marijuana, respectively. Those decisions cannot be squared with the original meaning of the Commerce Clause. As Justice Clarence Thomas remarked about the majority’s reasoning in Raich, “If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.”

 

[volinbham]

Sounds like Kennedy was skeptical - even Toobin thinks it's in big trouble

Toobin: Obama healthcare reform law 'in grave, grave trouble' - The Hill's Blog Briefing Room

Jeffrey Toobin, a lawyer and legal analyst, who writes about legal topics for The New Yorker said the law looked to be in "trouble." He called it a "trainwreck for the Obama administration."



"This law looks like it's going to be struck down. I'm telling you, all of the predictions, including mine, that the justices would not have a problem with this law were wrong," Toobin said Tuesday on CNN. "I think this law is in grave, grave trouble."

 

[OrangeEmpire]

Sounds like Kennedy was skeptical - even Toobin thinks it's in big trouble

Toobin: Obama healthcare reform law 'in grave, grave trouble' - The Hill's Blog Briefing Room

Alluha Akbar!

 

[dreVol]

Sounds like Kennedy was skeptical - even Toobin thinks it's in big trouble

Toobin: Obama healthcare reform law 'in grave, grave trouble' - The Hill's Blog Briefing Room

they use the term "analyst" pretty loosely

 

[lawgator1]

My preference actually would be for a single payer system that was basically a catastrophic plan - to prevent the bankrupting impact of severe, chronic disease. This would be a stripped down Medicaid/Medicare that was means tested but was in fact true medical insurance. This would also address the pre-existing condition issue for major diseases.

From there, I'd work both the tort reform and selling across state line issue to allow for any manner of catastrophic to cadillac plans (either primary or supplemental) for individuals to purchase.

Finally, I'd remove employers from the equation as direct payers by allowing them to set up programs (like 401Ks) that employees can buy into or doing their own (self insured) plans.

Move this back to consumers buying and using insurance as they need with government safety net for catastrophic coverage.

The problem with limiting the single payor solution to catastrophic care is that, if you do that, far too many people will forego a mechanism to insure for or otherwise be prepared to pay for primary care.

As a result, what could have been taken care of for $300 blossoms into a $30,000 problem. And then falls into -- wait for it -- your catastrophic plan.

We see this already with Medicaid and other safety net type programs for the poor who don't qualify for Medicare. They neglect something until it is emergent, then end up in the ER, where it ends up either being covered by Medicaid or not covered at all and passed on to those of us who pay for private insurance. That's why hospital aspirin is $5 a tablet.

And this is what I meant earlier about the conservative disconnect between outcome and process. Conservatives complain that the aspirin costs $5 a tablet and that their health insurance is $600 a month because of the uninsured. Along comes a plan to make everybody have insurance or otherwise contribute to the overall cost of health care and the same conservatives flip out.

Unless their plan is to just force the uninsured to go without health care, even if life or death, then what is their solution? Don;t tell me med mal reform will do the trick. That's not nearly enough. Drop in the bucket, in fact.

The simple fact is that some mechanism needs to be put into place whereby the cost of health care is transparent and paid for by a broader constituency than is currently the case. As is, the number of people paying into health care, as insurance or otherwise, is shrinking and is flat out doomed.

 

[n_huffhines]

The key vote is Justice Kennedy, according to the judge, and said that he was very sharp and clear in “his concern [that if] you want to change the fundamental relationship of the individual to the federal government, you can’t do it by simple legislation.”

Judge Napolitano pointed out that justices don’t always indicate how they’re going to vote based on their line of questioning, “but if Justice Kennedy was truly revealing, the way he sounded, in his questioning today it’s a bad day for the government on the core aspect of this case.”

Judge Napolitano: Justice Kennedy

 

[bamawriter]

It's incredible how ill-prepared the Solicitor General was for questions that he had to know were going to be asked. The liberal wing of the Court were basically throwing him lifelines and making his case for him.

 

[volinbham]

The problem with limiting the single payor solution to catastrophic care is that, if you do that, far too many people will forego a mechanism to insure for or otherwise be prepared to pay for primary care.

As a result, what could have been taken care of for $300 blossoms into a $30,000 problem. And then falls into -- wait for it -- your catastrophic plan.

We see this already with Medicaid and other safety net type programs for the poor who don't qualify for Medicare. They neglect something until it is emergent, then end up in the ER, where it ends up either being covered by Medicaid or not covered at all and passed on to those of us who pay for private insurance. That's why hospital aspirin is $5 a tablet.

And this is what I meant earlier about the conservative disconnect between outcome and process. Conservatives complain that the aspirin costs $5 a tablet and that their health insurance is $600 a month because of the uninsured. Along comes a plan to make everybody have insurance or otherwise contribute to the overall cost of health care and the same conservatives flip out.

Unless their plan is to just force the uninsured to go without health care, even if life or death, then what is their solution? Don;t tell me med mal reform will do the trick. That's not nearly enough. Drop in the bucket, in fact.

The simple fact is that some mechanism needs to be put into place whereby the cost of health care is transparent and paid for by a broader constituency than is currently the case. As is, the number of people paying into health care, as insurance or otherwise, is shrinking and is flat out doomed.

People already forego primary care even if they have insurance.

The whole preventative care thing is great in theory but human behavior doesn't match up.

 

[n_huffhines]

I hate to break it to you, but that's what Ronald Reagan did, that's what Bush did, that's what W did, and that's what Romney/Santorum would do if given the chance.

 

[volinbham]

Here's the big problem I see with the government argument. They are claiming that by being born you will need healthcare some time so you are already in the market thus they can regulate it.

However, they are talking about requiring the purchase of health INSURANCE not health care. It's simple to see that one can pay for healthcare without having health insurance.

By virtue of being alive you need food - should we be required to purchase food contracts that guarantee food availability?

The related piece of the argument that is if someone doesn't buy insurance it raises costs for others. The same would be true for food purchases - buying junk food or not buying food creates costs for society so can we mandate food contracts that provide food approved by some government panel?

There is a clear difference between health insurance and health care.

 

[utvolpj]

Unless their plan is to just force the uninsured to go without health care, even if life or death, then what is their solution? Don;t tell me med mal reform will do the trick. That's not nearly enough. Drop in the bucket, in fact.

lots of ideas have been put out to try and develop a more efficient market but the current admin decided to go the complete opposite way and essentially eliminate the market. Thankfully they're being called out on that

The simple fact is that some mechanism needs to be put into place whereby the cost of health care is transparent and paid for by a broader constituency than is currently the case. As is, the number of people paying into health care, as insurance or otherwise, is shrinking and is flat out doomed.

the number of people that can't afford insurance is very small and I have no problem helping them. As for the rest....

 

[dreVol]

Congress: Doin it for the lulz:

Most of us know that when then-Speaker Pelosi was asked where the Constitution gives Congress the power to enact an “individual mandate,” she replied with a mocking “are you serious? Are you serious?”

Here are a few more pearls of constitutional wisdom from our elected representatives.
Rep. Conyers cited the “Good and Welfare Clause” as the source of Congress’s authority [there is no such clause].
Rep. Stark responded, “the federal government can do most anything in this country.”
Rep. Clyburn* replied, “There’s nothing in the Constitution that says the federal government has anything to do with most of the stuff we do. How about [you] show me where in the Constitution it prohibits the federal government from doing this?”
Rep. Hare said “I don’t worry about the Constitution on this, to be honest [...] It doesn’t matter to me.” When asked, “Where in the Constitution does it give you the authority …?” He replied, “I don’t know.”
Sen. Akaka said he “not aware” of which Constitutional provision authorizes the healthcare bill.
Sen. Leahy added, “We have plenty of authority. Are you saying there’s no authority?”
Sen. Landrieu told a questioner, “I’ll leave that up to the constitutional lawyers on our staff.”

The Volokh Conspiracy » Democratic Congressman and Senators on Constitutional Authority for the ACA

 

[volinbham]

Nomination for craziest argument why ACA is Constitutional

The first proposition is that the health care law is constitutional. The second is that the court could strike it down anyway. Linda Greenhouse makes the first point more eloquently than I can. That the law is constitutional is best illustrated by the fact that—until recently—the Obama administration expended almost no energy defending it. Back when the bill passed Nancy Pelosi famously reacted to questions about its constitutionality with the words, “Are you serious?” And the fact that the Obama administration rushed the case to the Supreme Court in an election year is all the evidence you need to understand that they remain confident in their prospects. The law is a completely valid exercise of Congress’ Commerce Clause power, and all the conservative longing for the good old days of the pre-New Deal courts won’t put us back in those days as if by magic.

:blink:

from Slate magazine

 

[RespectTradition]

I thought the majority on the board with vote the other way.

People are not necessarily voting their preference. People are predicting what SCOTUS will do.

A Kagan recusal could play into the equation.

Nope. Overturning the law takes 5 votes in this case. It is totally irrelevant if 3 vote to uphold or 4 vote to uphold. If Kennedy (or someone else) sides with the liberals, then the best that overturning can get is 4 votes, which is not enough. A 4-4 vote means the law stands in this case. Kagan's participation won't affect the outcome.

I was very surprised at the 9-0 decision against the EPA, maybe there is more hope for our constitutional republic than I thought!

I was pleasantly surprised there as well.

Can the government force you to buy brussel sprouts for your health?

Not as far as I am concerned, but I don't get a vote.

 

[bamawriter]

Nope. Overturning the law takes 5 votes in this case. It is totally irrelevant if 3 vote to uphold or 4 vote to uphold. If Kennedy (or someone else) sides with the liberals, then the best that overturning can get is 4 votes, which is not enough. A 4-4 vote means the law stands in this case. Kagan's participation won't affect the outcome.

Actually, this is not true. A 4-4 split would mean that the lower court ruling would stand. Given that the case is actually a combination of multiple lower court rulings, some of which upheld the law and some of which struck it down, all of those rulings would stand. As such, the law would apply in each circuit except for the 11th, where it would be business as usual before the law was enacted. Given the tax implications, it would be a massive, massive cluster****.

 

[T-TownVol]

Clear the poll and ask again now that the hearings are over. I would change my vote to no.

 

[BigPapaVol]

Nomination for craziest argument why ACA is Constitutional



:blink:

from Slate magazine

that is one of the dumbest things I've read in this entire debate.

 

[T-TownVol]

Actually, this is not true. A 4-4 split would mean that the lower court ruling would stand. Given that the case is actually a combination of multiple lower court rulings, some of which upheld the law and some of which struck it down, all of those rulings would stand. As such, the law would apply in each circuit except for the 11th, where it would be business as usual before the law was enacted. Given the tax implications, it would be a massive, massive cluster****.

ding, ding, ding

 

[T-TownVol]

that is one of the dumbest things I've read in this entire debate.

dumb law = dumb supporters

 

[BigPapaVol]

dumb law = dumb supporters

wonder who on this site is a supporter?

 

[T-TownVol]

the dumbest of all - LG

 

[RespectTradition]

Actually, this is not true. A 4-4 split would mean that the lower court ruling would stand. Given that the case is actually a combination of multiple lower court rulings, some of which upheld the law and some of which struck it down, all of those rulings would stand. As such, the law would apply in each circuit except for the 11th, where it would be business as usual before the law was enacted. Given the tax implications, it would be a massive, massive cluster****.

The law would still stand in all circuits. In the 11th, the appeals court upheld Vinson saying that the mandate is unconstitutional, but ruled that the mandate was severable and that the rest of the law still stood.

 

[T-TownVol]

The law would still stand in all circuits. In the 11th, the appeals court upheld Vinson saying that the mandate is unconstitutional, but ruled that the mandate was severable and that the rest of the law still stood.

and now they have taken the severability out of the bill that is in front of the SCOTUS

 

[RespectTradition]

and now they have taken the severability out of the bill that is in front of the SCOTUS

What does that mean?