Supreme Court Health Care Decision Thread

[RandFan]

I have argued at length that if the ACA were funded via the general fund (tax) then it would not violate the commerce clause. Guess SCOTUS agrees.

For a long time I argued that the individual mandate was OK as a tax, and even after I accepted the government's CC argument, I still wondered why they wouldn't argue (legally, that is, as opposed to politically) that it's a tax.

Don't know about you but I took some heat for that argument. I kept arguing that I didn't know if technically the mandate was unconstitutional but clearly had congress simply levied a tax it would be. Others seemed to know that it was unconstitutional. I wonder if they know still? Suppose so. Not sure why a split decision would change their minds. It's not that compelling in all honesty. I can't say for certain that I know one way or the other.

 

[JamesDillon]

So a question for the legal minds here: is the holding on the CC authority dictum since it wasn't necessary to dispose of the controversy before the court? If not, does it change anything wrt CC authority jurisprudence?

As to the first question I'm not sure but I suspect maybe so because the CC and tax issues were not presented as separate questions, were they? The question presented was whether the mandate is constitutional, and CC and tax were offered as arguments in the alternative in support of constitutionality. If that's right, I'd be inclined to say that the CC stuff is dicta because the Court could have skipped over it and rendered the decision on the tax power alone.

Having said that, I don't think it matters very much. Maybe tipping my hand a little bit on my own views of the government's argument, but I think the Court is basically right to say that accepting the Government's argument here would have worked a major expansion to existing Commerce Clause doctrine; rejecting it leaves the status quo in place. I can't think of any statute upheld on Commerce Clause grounds that would need to be revisited in light of the Court's discussion of activity/inactivity, can you?

 

[Brown]

Re prediction 8 above: Which part of the ACA was not upheld by the SCOTUS?

First response, from the Chief's opinion:

The States also contend that the Medicaid expansion exceeds Congress's authority under the Spending Clause. They claim that Congress is coercing the States to adopt the changes it wants by threatening to withhold all of a State's Medicaid grants, unless the State accepts the new expanded funding and complies with the conditions that come with it. This, they argue, violates the basic principle that the "Federal Government may not compel the States to enact or administer a federal regulatory program."
...
Permitting the Federal Government to force the States to implement a federal program would threaten the political accountability key to our federal system.
...
The States claim that this threat serves no purpose other than to force unwilling States to sign up for the dramatic expansion in health care coverage effected by the Act.

Given the nature of the threat and the programs at issue here, we must agree. We have upheld Congress's authority to condition the receipt of funds on the States' complying with restrictions on the use of those funds, because that is the means by which Congress ensures that the funds are spent according to its view of the "general Welfare." Conditions that do not here govern the use of the funds, however, cannot be justified on that basis.
...
In this case, the financial "inducement" Congress has chosen is much more than "relatively mild encouragement"—it is a gun to the head.

I suspect there will be more analysis of this issue later, after everyone is done focusing on the mandate.

Second response: I'm still waiting for Fox "News" to tell me! I suspect they've already reported about a bajillion times that there were remarks criticizing the wisdom of the Act and I suspect they will somehow be working to twist the ruling in some bizarre unrealistic fashion, perhaps in the belief that their audience is too dumb to realize it.

Third response: This prediction was part of the "predictions" thread, and (like the "professional" seers) I do not claim 100 percent accuracy. I just claim to be better than the "professionals." Sooo.... has Rmoney promised to appoint someone like Scalia yet?

 

[marksman]

I think it's dicta, but Supreme Court dicta is still pretty darn persuasive. That said, a future Supreme Court would have no problem ignoring what was written about the Commerce Clause (and the Necessary and Proper Clause) if they were so inclined.

 

[JoeTheJuggler]

As to the first question I'm not sure but I suspect maybe so because the CC and tax issues were not presented as separate questions, were they? The question presented was whether the mandate is constitutional, and CC and tax were offered as arguments in the alternative in support of constitutionality. If that's right, I'd be inclined to say that the CC stuff is dicta because the Court could have skipped over it and rendered the decision on the tax power alone.

IIRC, the government offered the tax argument in the alternative, but not at all enthusiastically (especially in oral argumentation).

Having said that, I don't think it matters very much. Maybe tipping my hand a little bit on my own views of the government's argument, but I think the Court is basically right to say that accepting the Government's argument here would have worked a major expansion to existing Commerce Clause doctrine; rejecting it leaves the status quo in place. I can't think of any statute upheld on Commerce Clause grounds that would need to be revisited in light of the Court's discussion of activity/inactivity, can you?

I guess not, but I still don't buy the "inactivity" line of thinking.

In Wickard v. Filburn, what if the over quota wheat were actually burned rather than used on the farm? Then the farmer would have had to buy wheat on the open market. The real "activity" that triggered the CC authority was the fact that farmers (in aggregate) were refraining from buying wheat on the open market, and that made managing that essential market unpredictable. That is, we were counting on them needing to consume some amount of wheat from the market on the farms (as livestock feed or whatever), and they didn't.

In the case at hand, none of the state plaintiffs (the actual people who gave the lawsuits standing) had in fact done nothing. In fact, they all had moved in and out of coverage over the years. And they all had received healthcare of one type or another. (One of them actually filed for bankruptcy protection due to medical bills just a day or so before oral arguments.) This activity, taken in aggregate, has a measurable and significant impact on interstate commerce (just as the farmers' "activity" of not buying the wheat they consumed had significant impact on the wheat market).

 

[grunion]

Nice capture of the moment...

 

[JoeTheJuggler]

I think it's dicta, but Supreme Court dicta is still pretty darn persuasive. That said, a future Supreme Court would have no problem ignoring what was written about the Commerce Clause (and the Necessary and Proper Clause) if they were so inclined.

I think that's about what I think about it. As JamesDillon says, though, it wouldn't change anything. It's hard to imagine something else that would be similar enough to this to point to this holding but different enough not to have the tax argument.

 

[rustypouch]

First response, from the Chief's opinion:I suspect there will be more analysis of this issue later, after everyone is done focusing on the mandate.

Second response: I'm still waiting for Fox "News" to tell me! I suspect they've already reported about a bajillion times that there were remarks criticizing the wisdom of the Act and I suspect they will somehow be working to twist the ruling in some bizarre unrealistic fashion, perhaps in the belief that their audience is to dumb to realize it.

Third response: This prediction was part of the "predictions" thread, and (like the "professional" seers) I do not claim 100 percent accuracy. I just claim to be better than the "professionals." Sooo.... has Rmoney promised to appoint someone like Scalia yet?

It seems Fox is saying it was a Republican idea, and implying that Romney was for it, before he was against it.

http://www.foxnews.com/politics/201...re-insurance-mandate-has-long-checkered-past/

 

[JoeTheJuggler]

Don't know about you but I took some heat for that argument. I kept arguing that I didn't know if technically the mandate was unconstitutional but clearly had congress simply levied a tax it would be. Others seemed to know that it was unconstitutional. I wonder if they know still? Suppose so. Not sure why a split decision would change their minds. It's not that compelling in all honesty. I can't say for certain that I know one way or the other.

Well, prior to oral arguments, I was pretty certain the government's CC argument would win easily, but backed off of that after. I was hoping, but less confident.

 

[JamesDillon]

IIRC, the government offered the tax argument in the alternative, but not at all enthusiastically (especially in oral argumentation).


I guess not, but I still don't buy the "inactivity" line of thinking.

Like any line, there are blurry edges, but it makes sense to me as both an intuitive limit and implicit in the concept of "regulation." I think Roberts's opinion makes the argument very well.

In Wickard v. Filburn, what if the over quota wheat were actually burned rather than used on the farm? Then the farmer would have had to buy what on the open market. The real "activity" that triggered the CC authority was the fact that farmers (in aggregate) were refraining from buying wheat on the open market, and that made managing that essential market unpredictable. That is, we were counting on them needing to consume some amount of wheat from the market on the farms (as livestock feed or whatever), and they didn't.

So Congress could, under its Commerce Clause authority, have mandated that every farmer purchase X bushels of wheat on the open market regardless of their individual need? To the extent that farmers are participants in the wheat market, it's because of some affirmative commercial activity they have undertaken-- and whether you want to designate that as growing wheat, as the Wickard Court did, or raising livestock (i.e., the activity that defines them as "farmers" rather than ordinary citizens), I still see that as qualitatively different from being mere passive non-participants in the given market.

In the case at hand, none of the state plaintiffs (the actual people who gave the lawsuits standing) had in fact done nothing. In fact, they all had moved in and out of coverage over the years. And they all had received healthcare of one type or another. (One of them actually filed for bankruptcy protection due to medical bills just a day or so before oral arguments.) This activity, taken in aggregate, has a measurable and significant impact on interstate commerce (just as the farmers' "activity" of not buying the wheat they consumed had significant impact on the wheat market).

Again I think Roberts's opinion addresses this well. Look at his car analogy-- someone who purchased a car two years ago, and who might purchase another car again in a couple of years, is in no realistic sense an active participant in the car-buying market today. And that's true notwithstanding the fact that economic inactivity has effects on interstate commerce. Everything we don't do-- consciously or not-- has some effect on interstate commerce. I think the opponents of the act are quite right to stress the absence of any limiting principle here-- once we accept the economic effects of commercial inactivity as a valid basis for Congressional action under the Commerce Clause, it seems like there's literally nothing Congress can't legislate. And maybe that wouldn't be such a bad thing; I'm not an ardent states-rightist and would be more or less fine giving Congress plenary authority over all aspects of national life, but I do think that's a clear deviation from the constitutional plan and should be adopted by deliberate amendment rather than judicial reinterpretation.

 

[Skeptic Ginger]

I have previously predicted the followingredictions 8 and 8a have proven correct. Except for the part about someone being ill, I expect prediction 8b to be close to coming true.

How does Medicare and 8a co-exist?

 

[Cain]

Obama's most significant achievement is ruled a tax increase on poor and middle-income Americans.

Conservative messaging often impresses me, and their quick, unified response to this is no exception. Everybody just gets on board.

 

[Skeptic Ginger]

I agree, reality is on Obama's side, but the meme could stick. Those talking points will take much longer then a 30 second TV ad to explain.

There is a clip circulating with Romney saying the mandate is about personal responsibility. He's tried to weasel out claiming that's OK for states but not the Fed. The clip speaks louder than the weasel.

The cynical part of me wonders if Roberts actually considered the political fallout of the tax bit.

I always hoped Roberts was more like Judge Jones of the Kitzmiller v. Dover case, more law and less ideology. The three extremists on the court, Scalia, Thomas & Alito seem to be more about using their positions to get the right wing government they want.

 

[Skeptic Ginger]

Conservative messaging often impresses me, and their quick, unified response to this is no exception. Everybody just gets on board.

The Karl Rove Playbook is still their key textbook.

 

[RandFan]

So Congress could, under its Commerce Clause authority, have mandated that every farmer purchase X bushels of wheat on the open market regardless of their individual need? To the extent that farmers are participants in the wheat market, it's because of some affirmative commercial activity they have undertaken-- and whether you want to designate that as growing wheat, as the Wickard Court did, or raising livestock (i.e., the activity that defines them as "farmers" rather than ordinary citizens), I still see that as qualitatively different from being mere passive non-participants in the given market.

It strikes me somewhat as a false equivalency. I say somewhat because I do recognize the parallels but suspect the devil actually resides somewhere in the differences.

 

[JamesDillon]

It strikes me somewhat as a false equivalency. I say somewhat because I do recognize the parallels but suspect the devil actually resides somewhere in the differences.

Can you elaborate on that?

 

[Skeptic Ginger]

It seems Fox is saying it was a Republican idea, and implying that Romney was for it, before he was against it.

http://www.foxnews.com/politics/201...re-insurance-mandate-has-long-checkered-past/

I wonder if that article is planting more weasel seeds:

The Heritage Foundation "substantially revised" its proposal four years later, according to a 1994 analysis by the Congressional Budget Office.

They are implying the right wing think tank first proposed the idea but later recognized it was a mistake, ergo the right wing is really against the mandate.

 

[pgwenthold]

Conservative messaging often impresses me, and their quick, unified response to this is no exception. Everybody just gets on board.

The idea that the mandate is a "tax on the poor and middle-class" is interesting to me.

In fact, all income levels are affected. Rich people seem just as able to opt of insurance, on the grounds they are invincible and, even if they need it, will pay for it themselves.

Look at someone like Dr. Jay Gordon, who is pediatrician to the stars (and was the puppet master behind Jenny McCarthy). He doesn't even ACCEPT insurance in his practice, and it is on an all cash basis. He does it because he refuses to accept the negotiated prices that come with insurance companies. So why do his patients need insurance? What they need is a ton of money. You think Jenny McCarthy's son has health insurance?

But by the ACA, she would need to either get it, or pay the tax.

 

[Polaris]

See, right there ^ another dishonest talking point.

The poor have the option of government assistance countering any increased cost they can't afford.

The middle class as a whole, is going to be better off financially in several ways. One, those of us paying for deadbeaters' care through markups on our health care costs will see a benefit as the cost is shared by everyone, not just paying customers.

Two, a major cause of bankruptcy will be eliminated.

Three, those in the middle class who are paying costs for chronic health problems that no insurer will cover will now have access to insurance thus lowering their costs.

And four, all of us with kids over 18 but under 26 will pay less with our kids on our policies than if we had to have individual plans for the kids. My son is 22 and in college.

Five: Those in the middle class who want to start their own small business don't have to remain in jobs they hate instead because they can't afford insurance on their own. (This point proves to me that the GOP is only in favor of business when it's big enough to hand them millions of dollars to keep it legal to stack the decks against everybody else.)

 

[cwalner]

It seems Fox is saying it was a Republican idea, and implying that Romney was for it, before he was against it.

http://www.foxnews.com/politics/201...re-insurance-mandate-has-long-checkered-past/

Oh my Rupert, what big balls you have.

All the better to teabag you with, my dear.