Shifting the burden of costs is irrelevant to the actual authority prescribed in the Constitution. Congress is authorized to regulate commerce as it exists, not require people to participate in a commercial agreement.Ginsburg just said requiring people to carry health coverage is different from forcing them to buy food. She suggested uninsured people pass their costs onto others, that is why Congress can regulate them.
Ginsburg: “When you make a choice not to buy insurance…When disaster strikes, you may not have the money”
Then why can’t you mandate people to buy healthy food? Healthy food means healthy people which means lower health care costs.
Alito points out that everybody will also eventually have to be buried or cremated.
Verrilli says it is “completely different” since people don’t shift huge uncompensated burial costs to others.’’
By 2020 few if any employers (that don’t have a exemption) will be offering health insurance. We’ve run the numbers. By 2016 the “Cadillac tax” will hit our plan and at that point our company will be out of the health insurance business.Constitutionality does not depend on whether it would only affect 0.1% of people.
There are huge assumptions made in the Urban Institute study; they are assuming that employers will be keeping their health insurance but many employers have already said they are going to drop it, it is cheaper to pay $2000 penalty than purchase insurance.
IMO that has been the goal all along. Put the evil insurance companies out of business and let the government run the health care system. How anyone can think this is a good thing is beyond my comprehension. Bur then I have lived longer than some and have the benefit of hindsight.By 2020 few if any employers (that don’t have a exemption) will be offering health insurance. We’ve run the numbers. By 2016 the “Cadillac tax” will hit our plan and at that point our company will be out of the health insurance business.
A couple of months ago, I was watching the news with an obama-loving liberal friend. Out of the blue, he said, “I have lost all my faith in government.” That said a lot. Why would he put his faith in government in the first place? It is run by people, the same as evil corporations.IMO that has been the goal all along. Put the evil insurance companies out of business and let the government run the health care system. How anyone can think this is a good thing is beyond my comprehension. …
As those who were not lucky enough to get one of the few seats in the Supreme Court await word today’s arguments, I will make my big but obvious prediction for the day: despite all of the real concern on the right and trumped-up-yet-hopeful-statements from the left about Scalia’s position on the Commerce Clause being murky, his questions likely will suggest a clarity which will not be comforting for the Obama administration.
The one case that ObamaCare supporters rely on to show that Scalia might be open to their bloated conception of congressional authority is the medical marijuana case, Gonzalez v. Raich. That case is not a good guide of Scalia’s position in this case for at least two reasons. First, the plaintiffs in Raich conceded that the federal government had the authority to pass the drug law in question in that case, and to regulate the drug (black) market. The challenge was instead to the application of that drug law to local conduct. Here, however, the states and NFIB have challenged Congress’s authority to pass the mandate at all and to thereby regulate individuals whose defining characteristic is their status outside of the regulated market—that is, their failure to purchase insurance. This makes the ObamaCare challenge much more in line with cases like United States v. Lopez and United States v. Morrison, both of which challenged Congress’s authority to pass the regulation in question, and in both of which Justice Scalia joined the majority in finding the laws to be outside of Congress’s constitutional authority.
The second reason that Raich is not a good guide of Scalia’s take on ObamaCare goes to Scalia’s view of precedent. Scalia has repeatedly said that he is a textualist, not a nut. As such, he tends to be more willing to adhere to well-established precedent—even if he would not agree with it in the first instance. It is thus worth noting that in many ways, Raich was just the 1942 case of Wickard v. Filburn with a different crop. There, like in Raich, the parties conceded that the federal government could regulate the interstate market (in Wickard, for wheat). And there, the challenge was to the “as applied” local activity. But for the reasons already discussed, ObamaCare is not a Wickard-do-over, and so Scalia likely will not feel as bound.
nationalreview.com/bench-memos/294548/my-nostradamus-prediction-day-robert-altFinally, the government’s argument regarding necessary and proper—the clause that the left has argued will convince Scalia of the correctness of the Obama administration’s position—strikes me as the kind of argument that is likely to make Scalia, well, angry. Reduced to its essence, the government argues that Congress has put requirements on the health insurance market like covering individuals with preexisting conditions at controlled prices that will bankrupt the insurance companies, and the necessity of fixing the mess that they have made creates constitutional authority for Congress to reach outside of the system and drag people in to subsidize it. This is bootstrapping run-amok, and I sincerely doubt that Scalia will find it persuasive.
CNN Legal Analyst Jeffrey Toobin, following Supreme Court arguments on President Obama’s health care law, said on CNN that based on what he heard inside the Court, things didn’t look good for proponents of the law.
“This was a train wreck for the Obama administration,” he said. “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 added that he felt that U.S. Solicitor General David Verrilli simply wasn’t prepared for the conservative justices.
“I don’t know why he had a bad day,” he said. “He is a good lawyer, he was a perfectly fine lawyer in the really sort of tangential argument yesterday. He was not ready for the answers for the conservative justices.”
livewire.talkingpointsmemo.com/entries/toobin-this-law-looks-like-its-going-toToobin also said he thought Justice Kennedy, the perennial swing vote, was a “lost cause” for supporters of the health care reform law.
Agreed.Shifting the burden of costs is irrelevant to the actual authority prescribed in the Constitution. Congress is authorized to regulate commerce as it exists, not require people to participate in a commercial agreement.
None, and the Democrats know it.Agreed.
Even if you buy into the expanded interpretation of Wickard v. Filburn it does not apply in this case. That case dealt with the government stopping people from engaging in commerce, in this instance the goverment is forcing people to engage in commerce and enter into contracts. If that is allowed what limit could ever be placed on government powers?
So Kagan is helping Verrilli make his oral arguement? Why don’t they just put her in a cheerleader uniform?Alito wonders if it forces healthy people “to subsidize services that will be received by somebody else.”
WSJ’s Kendall: Kagan defends Verrilli, says young people who are subsidizers of the market will be the subsidized when older
WSJ’s Kendall: Roberts says if the court approved of the mandate, it may be hard to set limitations on what Congress can do
Everyone involved knows that Kagan should have recused herself from this case.So Kagan is helping Verrilli make his oral arguement? Why don’t they just put her in a cheerleader uniform?
If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive. If he does, he may take Chief Justice John G. Roberts, Jr., along with him. But if he does not, the mandate is gone. That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.
scotusblog.com/2012/03/argument-recap-it-is-kennedys-callIf the vote had been taken after Solicitor General Donald B. Verrilli, Jr., stepped back from the lectern after the first 56 minutes, and the audience stood up for a mid-argument stretch, the chances were that the most significant feature of the Affordable Care Act would have perished in Kennedy’s concern that it just might alter the fundamental relationship between the American people and their government. But after two arguments by lawyers for the challengers — forceful and creative though they were — at least doubt had set in. and expecting the demise of the mandate seemed decidedly premature.
Sharp questioning by the Supreme Court’s conservative justices has cast serious doubt on the survival of the individual insurance requirement at the heart of President Barack Obama’s historic health care overhaul.
Arguments at the high court Tuesday focused on whether the insurance requirement “is a step beyond what our cases allow,” in the words of Justice Anthony Kennedy.
He and Chief Justice John Roberts are emerging as the seemingly pivotal votes.
ctpost.com/news/article/Conservative-justices-question-insurance-mandate-3436697.php#ixzz1qKxYhLsQJustices Antonin Scalia and Samuel Alito appeared likely to join with Justice Clarence Thomas to vote to strike down the key provision. The four Democratic appointees seemed ready to vote to uphold it.
Supreme Court justices lobbed tough questions at the U.S. solicitor general defending the healthcare law’s insurance mandate in the second day of oral arguments in the case.
Several of the court’s conservatives appeared skeptical of the government’s argument that requiring consumers to purchase health insurance or face a fine is constitutional, including Justice Anthony Kennedy, who is often the court’s swing vote.
Kennedy argued the court has a “very heavy burden of justification” for requiring that people purchase insurance.
Kennedy also said the mandate would change the relationship between the government and individuals in a “fundamental way.”
The questioning was enough for Jeffrey Toobin, a legal analyst and staff writer for The New Yorker, to predict that the healthcare law appeared likely to be struck down.
“This law looks like it’s going to be struck down,” Toobin said Tuesday on CNN.“I think this law is in grave, grave trouble.”
The court scheduled two hours of debate Tuesday on the individual mandate — the most contentious part of the reform law — in what was likely to be the most-watched of the three days of oral arguments.
Tom Goldstein, the author of a popular Scotus Supreme Court blog, offered a mid-argument update in which he said there was no fifth vote yet in favor of or against the mandate.
He wrote that the four more liberal justices on the court appeared to be in favor of the mandate, while conservatives were expressing skepticism.
thehill.com/blogs/healthwatch/health-reform-implementation/218429-justice-kennedy-among-skeptical-voices-at-courts-healthcare-debateThe Obama administration has argued that the mandate is allowed under the federal government’s constitutional ability to control commerce, but Kennedy was among those who appeared skeptical, according to early reports on the arguments.
If conservative Justice Antonin Scalia hadn’t already made up his mind on the individual mandate before Tuesday’s oral argument, he wanted people in the court to think otherwise.
Scalia aggressively questioned the Obama administration’s lawyer Donald Verrilli on the limits of federal power, and how they might be impacted if the health care law’s requirement to purchase insurance is upheld.
That may not seem like much of a surprise. But Scalia’s opinion in a recent, key case — one that hinged on a similar question of the extent of Congress’ commerce clause power — convinced many health care reform supporters he might be in play.
If the mandate is acceptable, Scalia asked, what can’t the government do? He even raised the now-famous specter of a “broccoli mandate.”
Verrilli argued that the mandate is appropriate because everyone is already part of the health insurance market. He argued that it’s there as part of a broader regulatory scheme to ensure that sick, uninsured people don’t pass the costs of their health care onto others.
Scalia didn’t seem to buy it, pointing out that the government might then “define a market as food” and “therefore you can make people buy broccoli.”
“In addition to being necessary, it must also be proper,” he said of the mandate, indicating that he does not believe it’s proper.
Scalia was vocal in needling Verrilli about the constitutionality of the insurance requirement, but was largely silent when attorneys for the 26 Republican-led states challenging it were fielding questions.
tpmdc.talkingpointsmemo.com/2012/03/antonin-scalia-tips-his-hand-against-health-care-mandate-1.phpSome liberals have held out hope for winning Scalia’s vote to uphold the law, pointing to his decision in the 2005 Gonzalez v. Raich case for sweeping federal power. If Scalia’s line of questioning is any indication, they shouldn’t hold their breath — he appears to believe the two cases are apples and oranges.
TPM’s Pema Levy reports that Republican Attorneys General expressed confidence after hearing the second day of oral arguments over health care reform in a press conference in Washington today, hammering comments made by Justice Anthony Kennedy that the mandate changes the relationship between people and the government.
Florida Attorney General Pam Bondi said that after two days of arguments “we feel very confident” that the law will be stricken down.
livewire.talkingpointsmemo.com/entries/gop-attorneys-general-confident-supreme-court-will-strikeNorth Dakota’s Attorney General Bruni said he feels a lot better after hearing two hours of arguments than when the case first started in 2010.