Supreme court unlikely to delay Obama healthcare ruling

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latimes.com/news/politics/la-pn-skeptical-kennedy-signals-trouble-for-obamas-healthcare-law-20120327,0,5723465.story

"By David G. Savage and Noam N. Levey

March 27, 2012, 10:10 a.m.
Reporting from Washington— The Supreme Court’s conservative justices sharply attacked the insurance mandate that is at the heart of President Obama’s healthcare law, strongly suggesting Tuesday they are prepared to strike it down as unconstitutional.

Justice Anthony M. Kennedy described it as “unprecedented” for the federal government to impose an “affirmative duty” on people to buy a product. He was referring to the law’s requirement that everyone have minimal health coverage by 2014, or pay a penalty.

“You have a heavy burden” to show the Constitution permits Congress this sort of power, he told Obama’s solicitor general, Donald Verrilli Jr.

Justice Antonin Scalia said there is no basis for allowing the federal government to impose such a mandate in the guise of regulating commerce. If “forced purchases” are permitted, “the question is whether there are any limits” on Congress’s power.

Chief Justice John G. Roberts Jr. sounded equally skeptical. He said the Constitution puts limits on federal power, and those limits would be erased if federal authorities could require the purchase of products. He said he was not convinced by the government’s argument that healthcare is unique because persons may face a medical emergency at any moment.

Roberts said motorists may need “emergency services” on the highway, including from the police or ambulance. Even so, the government could not require everyone to buy a cellphone, he said.

If anything, Justice Samuel A. Alito Jr. was even more critical. He said the mandate is “forcing these [healthy] people to provide a huge subsidy to insurance companies.”

It is often difficult to tell from oral arguments exactly how the justices will vote, but from their questions, the four conservatives sounded as though they had made up their minds that the mandate is unconstitutional. If so, they would surely have a fifth vote for a majority thanks to Justice Clarence Thomas. He has been counted as a sure vote against the healthcare law because he has argued for cutting back on Congress’s power to regulate business and the economy. … "

If true, this is wonderful news.
 
The government is up now. Scalia brought up the 10th Amend. argument; it’s obvious that he realizes that this comes up against the 10th Amend. where most of the power is delegated to the states and THE PEOPLE, not the federal government.

Another (Roberts or Kennedy) brought up another point that will eventually help with the HHS contraceptive mandate – that as it stands right now, the issue before them, requires all people to purchase service for maternity coverage, pediatric coverage and coverage for addiction. He said that not everyone can avail themselves of maternity coverage, pediatric coverage or addiction coverage, so how can people be forced to buy (parts of) coverage they will not never use?

Not everyone has children and not everyone becomes addicted to a substance so they have to have coverage they will not use. And next year can this cause people to purchase something else?

Is he (hopefully) referring to the HHS mandate on contraceptives without expressly saying so since the HHS mandate is not up before the Court?.

If we lose Roberts though, we lose. Kennedy, a swing vote won’t matter.

I see those who vote this as Unconstitutional, as per the necessary and proper clause of the commerce clause as:

Scalia
Thomas
Alito
Kennedy – always a “maybe”
 
Since when has Kennedy been considered a “conservative justice”? I guess maybe by LA Times standards…

This is good to hear. Could be a 5-4 split, but I wonder if the rest will stand on severability.
 
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.
Agree – “as it exists” and not to create or force people to enter into contracts that do not exist.
 
Since when has Kennedy been considered a “conservative justice”? I guess maybe by LA Times standards…

This is good to hear. Could be a 5-4 split, but I wonder if the rest will stand on severability.
Since the court got flooded with more identifiable liberals?
Hoping it is a no-go for acceptance of the obama healthcare nightmare.
 
Scalia to Verrilli: “I don’t agree with you that the relevant market here is health care. You’re not regulating health care. You’re regulating insurance. It’s the insurance market that you’re addressing and you’re saying that some people who are not in it must be in it and that’s – that’s difference from regulating in any manner commerce that already exists out there.”
After Rough Day In Court, An Optimistic View For Supporters Of ‘Obamacare’

tpmdc.talkingpointsmemo.com/2012/03/after-rough-day-in-court-an-optimistic-view-for-supporters-of-obamacare.php
Jonathan Cohn: Day 2 at the Court: That Could Have Gone Better
My first impression from day two at the Supreme Court: I was more confident yesterday than I am today. With the caveat that I know health policy a lot better than I know law, I can still imagine the justices upholding the individual mandate. But, at this point, I can just as easily imagine them striking it down.
tnr.com/blog/jonathan-cohn/102073/supreme-court-day-2-mandate-oral-argument-reaction-analysis-roberts-kennedy
Sotomayer: “We get tax credits for having solar-powered homes. We get tax credits for using fuel efficient cars. Why couldn’t we get a tax credit for having health insurance and saving the government from caring for us.”
GOP up, Dems down after Supreme Court arguments on mandate
Republican lawmakers leaving oral arguments before the Supreme Court on Tuesday agreed that the government will have a tough time finding a fifth justice to uphold the health law’s individual mandate.
Democrats for their part found solace in pointed questioning of lawyers on both sides of the argument by Justices Anthony Kennedy and Chief Justice John Roberts. Their outlook coming out of the court, however, was visibly less sunny than the Republicans’.
“I would say today the government had a tough day,” said Sen. Mike Johanns (R-Neb.). “That was my impression.”
Rep. Bill Cassidy (R-La.) said the government’s top lawyer, Solicitor General Donald Verrilli, faced pointed questioning about the limits of federal power if the mandate is allowed to stand.
“It was almost as if (Elena) Kagan, (Stephen) Breyer and (Sonia) Sotomayor were bailing out the solicitor general,” Cassidy told The Hill. “And, frankly, it seemed like the only argument they could offer is one of expediency.”
Virginia Attorney General Ken Cuccinelli, who filed his own lawsuit against the heath law on the day it was passed two years ago, also attended. “I’m happier coming out than I was going on,” he said.
Democrats said the court raised concerns with the extent of the federal government‘s power, but argued that precedent seemed to be in favor of the mandate‘s constitutionality.
“Justice Kennedy and Justice Roberts both asked good questions in both directions,” said Rep. Jim McDermott (D-Wash.) “and to me that’s an indication that there’s a real good chance it’s going to be found constitutional.”
Sen. Tom Harkin (D-Iowa), who also attended, said “I think the court sees that the precedent is all on permitting Congress to do this under the Commerce Clause. What they‘re wrestling with – and probably they’ve wrestled with this in the past – is the question of, ‘Well, if this is allowed, is there no limit to what Congress can do under the Commerce Clause?’” Harkin said. “You could almost see Kennedy wrestling with this.”
thehill.com/blogs/healthwatch/legal-challenges/218481-gop-up-dems-down-after-supreme-court-arguments-on-health-law-mandate
sarahkliff: Re: Vermelli → RT @crc0122 He choked. I was at the arguments today, when he was coming out of coat check he was verbally beating himself up
 
Since when has Kennedy been considered a “conservative justice”? I guess maybe by LA Times standards…

This is good to hear. Could be a 5-4 split, but I wonder if the rest will stand on severability.
The press normally describes Kennedy as the moderate (swing vote) justice, except in cases when he disagrees with the liberal bloc…
 
The press normally describes Kennedy as the moderate (swing vote) justice, except in cases when he disagrees with the liberal bloc…
Agreed. You have 5 Justices listening the case and 4 who have already decided the case.
 
Someone please explain this argument to me. I just don’t get it.

The Fed is claiming that the solution to the problem of shifting costs from those that can’t afford to pay their medical bills to those that can (via hospitals charging higher rates), is to shift the cost from those that can’t afford to pay their medical bills to those that can and those that don’t have medical costs (via insurance)?
 
Someone please explain this argument to me. I just don’t get it.

The Fed is claiming that the solution to the problem of shifting costs from those that can’t afford to pay their medical bills to those that can (via hospitals charging higher rates), is to shift the cost from those that can’t afford to pay their medical bills to those that can and those that don’t have medical costs (via insurance)?
That the healthy and younger population, who is insured, will pay higher premiums (even when they themselves don’t use the insurance much), in order to subsidize those who do – which is the older or uninsured population who did not see a doctor, because they could not afford it, but waited until their health became an emergency.
 
I agree – Vermilli choked.
I don’t think he choked. He’s arguing before the Supreme Court a case that is not based on legal precedence. He essentially asking them to change the Constitution on the argument that “this might be a good idea”. He has very little to work with here.
 
That the healthy and younger population, who is insured, will pay higher premiums (even when they themselves don’t use the insurance much), in order to subsidize those who do – which is the older or uninsured population who did not see a doctor, because they could not afford it, but waited until their health became an emergency.
And all this money will pass through corporate coffers and not the federal government (like social security).
 
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.
One of my HR magazines was covering this topic. They said CURRENTLY just over 30% of employers were planning on dropping coverage in 2014 or 2015. The more knowledgeable a company was of the law the more likely they were to plan on dropping their health care coverage.
 
Avik Roy: Roberts says “the key to the government’s argument” – suggests it’s not his argument.
**Argument recap: It is Kennedy’s call **

scotusblog.com/2012/03/argument-recap-it-is-kennedys-call
Health law’s benefit requirements could undermine case for individual mandate

thehill.com/blogs/healthwatch/legal-challenges/218517-health-laws-benefit-requirements-could-undermine-case-for-individual-mandate
Solicitor General Coughs, Stumbles, Stutters Through ObamaCare Defense

buzzfeed.com/zekejmiller/solicitor-general-coughs-stumbles-stutters-throu
 
That the healthy and younger population, who is insured, will pay higher premiums (even when they themselves don’t use the insurance much), in order to subsidize those who do – which is the older or uninsured population who did not see a doctor, because they could not afford it, but waited until their health became an emergency.
That I understand. How does shifting the cost to others solve the problem of shifting the cost to others?
 
Kennedy, Roberts Likely To Determine Fate Of Mandate
Chief Justice John Roberts and Justice Anthony Kennedy — two critical swing votes in the health care reform case before the Supreme Court — asked skeptical questions about the individual mandate Tuesday, but rounded out the arguments with some sympathy for the federal government’s broad power to regulate health insurance.
With reform supporters battered by early analysis suggesting the court’s conservatives were hostile to the health care law’s requirement that Americans purchase health insurance, Roberts’ and Kennedy’s more balanced questions renewed hope that the law will be upheld.
Indeed, with the four justices comprising the court’s liberal wing likely to uphold the mandate, the outcome seems destined to hinge on Kennedy and Roberts. And though the two conservatives didn’t fully betray their leanings, the Obama administration and supporters of health care reform almost certainly only need one of their votes to prevail.
Kennedy asked the Obama administration’s lawyer Donald Verrilli whether requiring people to buy a good “changes the relationship between the individual and the government in a very fundamental way.”
He suggested that there’s a “heavy burden” on Congress to show that it is authorized to do so under the Constitution, inquiring whether there are “any limits under the Commerce Clause” if the mandate is allowed to stand.
“Can you create commerce in order to regulate it?” Kennedy said.
Roberts also asked Verrilli tough questions about the limits of federal power if the mandate is upheld, including how to distinguish between health care and other markets.
“Can the government require you to buy a cell phone?” he asked, in order to make sure people have access to emergency services and police assistance when they need it.
Verrilli argued that the individual mandate falls comfortably under the federal government’s Commerce Clause authority to regulate economic activity with a substantial effect on interstate commerce. The “limiting principles” of congressional power, he said, have to do with regulation that is local and non-economic.
Despite their tough questions, both Kennedy and Roberts indicated sympathy with the view that health insurance is a unique market that may require a unique approach to regulate — and that’s central to the constitutional question at hand.
“I think it is true that if most questions in life are matters of degree,” Kennedy said, “in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.”
Despite his initial skepticism, Roberts later seemed persuaded of the uniqueness of health care market.
“Everybody is in this market,” Roberts told the lawyer for the Republican opponents. “So that makes it very different than the market for cars or the other hypotheticals that you came up with, and all they’re regulating is how you pay for it.”
Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan have long been seen as likely votes to uphold the mandate, and their lines of questioning Tuesday didn’t indicate otherwise. Justice Clarence Thomas is seen as a lock against the law, while Justices Antonin Scalia and Samuel Alito indicated little sympathy for the mandate.
tpmdc.talkingpointsmemo.com/2012/03/kennedy-roberts-look-poised-to-determine-fate-of-mandate.php?ref=fpb
Anthony Kennedy: Uninsured Are ‘In The Market’ And 'Creating A Risk’
Some further evidence that Justice Anthony Kennedy has some sympathy for the Obama administration’s argument that opting not to purchase health insurance impacts the interstate market regardless.
Kennedy said this during a exchange with the GOP’s attorney Paul Clement:
JUSTICE KENNEDY: But they are in the market in the sense that they are creating a risk that the market must account for.
This is key to the argument for the constitutionality of the mandate – while challengers argue that Congress may not force people to purchase a good, proponents say there’s no such thing as “inactivity” when it comes to the health insurance market for the reason Kennedy articulated.
Kennedy asked both sides tough questions, so it’s not clear overall how he will rule.
livewire.talkingpointsmemo.com/entries/anthony-kennedy-uninsured-are-in-market-creating-risk
 
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