Is anyone else worried that after such insane decisions as Citizen’s United, the Supreme Court is going to do something really stupid to health care reform?
I may have to move away again after all.
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16 Comments
I would be amazed if the individual mandate is upheld.
Frankly not upholding mandate is quite debatable, and we should understand and respect that it can go either way. I do not think it should be equated to citizen united at all. Mandate does have good for and against arguments.
As expected, Kennedy really is the key. I really am hoping that stare decisis pushes him to let the mandate stand. The precedent, for those who haven’t been obsessing over the coverage, is Wickard v. Filburn, in which the Court ruled the government does have the power to regulate individual, non-commercial activity if that activity impacts commerce. And individual choices to refrain from buying health insurance does impact commerce in the form of higher costs for medical care and higher premiums for those who do purchase insurance.
I am simply not buying Scalia’s argument that upholding the mandate empowers Congress to force you to buy broccoli. It does not logically follow. The key difference is this: Insurance is the only product that you cannot buy when you need it. If you don’t have insurance and get a cancer diagnosis, there is no provider that would sell you coverage at that point. If I need broccoli for some recipe and don’t have it, I can still buy it. The markets are fundamentally different.
My guess is that either the whole law stands or only the mandate falls, with Kennedy being the deciding vote in the latter issue. And for that part, I give it 60/40 in favor of being upheld. I would be shocked with any other outcome.
@ Michael I had some hope when I heard Kennedy yesterday say “I don’t think that the argument that argument that the government can intervene in a market if this decision is passed. The insurance market is unique enough that I would be willing to allow it an exception.”
Where basically he said that regulating industry is not the government’s role, but because the health insurance industry is SO unique and something the founders could not predict as an economic engine, he would be willing to allow the exception for the mandate, because not to do so would be much more contrary.
So we have hope my friend.
That quote is supposed to be “I don’t think the argument that the government can intervene in a market if this decision is passed. The insurance market is unique enough that I would be willing to allow it an exception.”
Also it’s not an exact quote, I’ paraphrasing, but the transcript is probably available on oyez, from day 2.
If I had to pick odds, I would bet against it coming down to a party line decision on this case. The conservative justices seem to have an interesting balancing act here.
1) The number of 5-4 decisions that has come out of this court is starting to hurt the Court’s reputation, and Roberts has to be at least starting to be concerned about that even if none of the other justices are.
2) If they decide that the mandate is unconstitutional, they have to do in such a narrowly defined way as to not preclude other conservative goals such as privatized Social Security.
3) At least some of them care enough to want a decision that is not blatantly contradictory to their own previous decisions.
4) They can’t strike down this law for primarily political reasons without being at least a little worried about what will replace it. The Republicans have not proposed a viable alternative in 15 years, and that alternative looked an awful lot like what they are now saying is unconstitutional. Most of the solutions preferred by Democrats would be even more offensive to them than the individual mandate. The thought of striking down the mandate now only to have it replaced by “Medicare for Everyone” 5-10 years from now can’t be an appealing one.
After Bush v. Gore AND Citizens United, do we really expect SCOTUS to act any less like the ELECTED political whores on healthcare, than they did on those?
Under the US Constitution I have a right to navigate the waters of the US.
The US Government mandates I purchase a fire extinguisher and life jackets, even though I don’t smoke and can swim.
What is the legal difference between the US Coast guard mandating I have life saving safety equipment on my boat, and mandating I have life saving health insurance?
Living in Baja, and I’m not coming back… America is having a seizure. It might be a decade or more before she can recreate herself.
What I want to know is why the health insurance companies haven’t squashed all the opposition. Without single-payer and with the mandate, insurance companies stand to make BILLIONS of dollars over the next decade. Who convinced them to keep quiet long enough for this to get past the appellate courts?
The mandate is absolutely within Constitutional limits as stated in several comments above. I think this whole thing is going to backfire on the Court unless the whole law is upheld; the minute people start losing the benefits they’ve gained (even if they don’t know it yet), the whole tenor of the conversation is going to change from “MAKE IT GO AWAY!” to “BRING IT BACK!” The only possible benefit long-term to that change is the possibility of single-payer care, which will probably be a “self-insured” plan with the citizens of each state paying into the pool and a few companies administering it in each state. Not nearly as profitable for the insurance companies but better for all of us in the long run…unless by some miracle we get Medicare for all.
Electoral Vote (http://www.electoral-vote.com/evp2012/Pres/Maps/Mar27.html) has an interesting twist to this. He believes that if the health care law is struck down it will be good for the Dems, and if upheld it will be good for the GOP. I’m not sure if I agree with him, but it is an interesting theory.
He also points out the hypocrisy of the whole situation, since the law was originally conceived by Republicans, including Nixon and the Heritage Foundation. Republicans didn’t start hating the individual mandate until Obama changed his mind about it (he was against an individual mandate during the Democratic primary, while Clinton was for it).
Interesting comment at the end: “Scalia and Kennedy voted with the majority in Gonzales v. Raich, so if they vote against the ACA, they are going to be pilloried for saying that growing marijuana for personal medical use is interstate commerce but something that affects 18% of the economy is not.” I personally don’t think Scalia would give a damn about being pilloried. He hasn’t shied away from controversy before.
And while Roberts may say he worries about the court’s reputation as non-political, I would say that Bush v. Gore pretty much killed that. Actually, there are plenty of decisions before then, too, but Bush v. Gore was the final nail in the coffin. I just think it’s kind of sad that the “centrist” vote (Kennedy) is considerably more conservative than the populace. But that’s what happens when you get someone like GWB replacing a moderate jurist with a fair temperament with a right-wing partisan hack who breaks decorum when the obvious is pointed out.
This may be in the “Stupid Question” category, but I really wonder. One of the battle cries of the Right has been judges who legislate from the bench. Isn’t the out-right “killing” of a law “legislating from the bench”? Of course, I realize there is an alternative universe out there, but still, I wonder. 🙂
Not really. Killing laws that are unconstitutional is the job of the court. Creating new laws is what people complain about. For example, a court requiring busing students to fight discrimination.
Of course, the right isn’t really against judicial activism (for example, Bush v. Gore), they just complain when they don’t like the results.
Regarding the comments people are making about Bush v. Gore, I think it’s important to remember that four of the current court members, including Chief Justice Roberts, were not on the Court that decided that case. And two of the members that were on the court then had previously stated publicly that they wanted their replacements chosen by a Republican president… (I wonder what O’Connor thinks of her replacement now.)
Drew, technically yes, you have a point. But do you really think the four new members would have voted any differently? I see no reason at all to think that Alito, Kagan, Sotomayor, and Roberts would have voted any differently than their predecessors (O’Connor, Stevens, Souter, and Rehnquist). Roberts is the only one that is even slightly debatable, but I don’t see him siding with Gore.