Acting Solicitor General Neal Katyal said today, in oral arguments before the Eleventh Circuit, that the individual mandate provisions of the health-care law “may violate the constitution of Ayn Rand, but they do not violate the Constitution of the United States”.
“It’s about failure to pay, not failure to buy,” Katyal said.The lawyers and judges spent a lot of energy batting around the issue of timing. Clement argued that the commerce clause did not allow government to force the uninsured to buy coverage. Under questioning, however, he conceded that when an uninsured person with a gunshot wound or difficult pregnancy showed up in the emergency room seeking free care, the government had the right at that moment to force the person to buy health insurance.
By seeking health care, Clement said, the uninsured patient made himself an active participant in interstate commerce, and thus subject to regulation. But as long as he did not seek health care, he was not engaging in commerce and thus was not subject to federal regulation.
Hull, on the other hand, noted that every year, 20 million uninsured people seek and receive uncompensated medical care that other people have to cover. Is that not an ongoing activity and thus subject to regulation under the commerce clause, she asked.
This is the link to the hearing. There is an interesting exchange at 106.32 on the tape, where one of the judges challenges the law’s opponents very specifically on the whole “individual liberty” argument. It made me smile, because while the judge is impressed that the individual liberty argument is rhetorically powerful, he can’t find the law it’s grounded in. Is it the Tenth Amendment? Is it substantive due process? Where is it? Because it isn’t in the Commerce Clause.
I don’t intend to imply it’s a “smackdown” or anything like that. What it is is a very rigorous probing question on the specific legal basis for the rhetorical argument conservatives are making in opposition to the PPCAC, and the judge won’t let it go. He pushes. We end up with the “thought experiment” type of thing that conservatives are so fond of, where what might have been in the bill of rights, but is not, is discussed.
And, no, I didn’t listen to the whole hearing. I got an email heads up that an exchange I would like is at 1.06 in the tape, and it is.
The Snarxist Formerly Known as Kryptik
This right here is why the whole snit over ’empathy’ during the Sotomayor hearings was such a whole lotta hooey to me. A judge can find the argument powerful and see where it’s coming from without such empathy for the argument coloring the actual legal substantiality. Just because folks like Alito, Roberts, and Thomas, etc., etc. show little predilection for hiding their sympathies doesn’t mean that recognizing the weight of an argument rhetorically and emotionally necessarily implies bias and/or ruling without regards to actual legal precedents.
The Dangerman
I continue to fail to see how the Government coerces anyone to buy insurance; one doesn’t have to buy insurance, but, if one does, one gets a tax break. I don’t see any difference between this and mortgage deductions; engage in some form of economic activity that is desired, get a tax break. This isn’t rocket science, is it?
eric
@The Dangerman: rocket science relies on science and so does the detection of climate change and since there is no real climate change, there are no real rockets and thus no science; ergo, the mandate is unconstitutional because it violates the laws of Moses. q.e.d.
trollhattan
Maybe the best Rand citation, evah.
O/T but we’re due an avalanche of word-salady emails from our favorite half-termer, now with more Lieutenant Gov. Todd.
http://www.nytimes.com/2011/06/10/us/10palin.html?hp
LongHairedWeirdo
I think that the inability to tax people if they don’t buy health insurance is in the penumbra of rights alluded to in the Constitution. Except – shucks, that would mean it doesn’t exist if you think GvC and RvW are such hideous decisions.
Villago Delenda Est
“Conservatives” only like thought experiments that are structured so that their conclusions, which are determined beforehand by their ideology, are confirmed by the experiments.
Lysenkoism in action.
Valdivia
Love the Kaytal quote. J Cohn at TNR has a good summary of the case yesterday.
kth
The Constitution of Ayn Rand is what four of the justices go by, so if they can get Kennedy they’ll be snarking last.
Bulworth
I hope this person has the “Acting” part of their title removed real soon.
Suffern ACE
O/T – but the fact that there is an acting solicitor general over a year after the last one left to become a supreme court justice kind of irks me. The Senate really is an awful institution. A brief thought experiment leads me to believe that it is also stupid.
Villago Delenda Est
@Suffern ACE:
Ben Nelson. Tom Coburn. Jim DeMint. John Cornyn. Jon Kyl. John McCain. James Inhofe. William Sessions.
I rest my case.
kay
@Villago Delenda Est:
I hate that phrase now. I hear it, and I think “oh, here comes some bullshit I have to wade through”.
“Let’s try a thought experiment!” Let’s not. How about you just tell me what it is you’re claiming.
NR
@kth: Are you kidding? The same court that gave us Citizens United will gleefully uphold the mandate, given that it facilitates a massive transfer of wealth from citizens to private corporations.
Citizen Alan
@Bulworth:
Sadly, no.
El Cid
Damn it, I can’t remember the blog, but one blogger was discussing the difference between the sort of penalty / fee / fine which has some future enforcement if you continue non-compliance, and the mandate fee / penalty required if you don’t have private health insurance — which doesn’t ever require that you buy the insurance, just that if you don’t, you pay a fee / fine / penalty.
Someone else can maybe highlight why this is a big legal difference.
Again, given that the fees/ fines/ penalties themselves are calculated by income / family size levels, I still think that if possible the structure should have been reversed — a tax is levied on all, everyone who does have insurance gets a tax credit, and those who don’t have insurance don’t get the tax credit.
But ZOMG tackzizz and all that.
Southern Beale
Tennessee’s small government Republicans have struck again! Now you can go to jail for posting a “distressing image” online. That means we can go after Andrew Breitbart because that penis picture was REALLY TRAUMATIC!
RobertB
@Citizen Alan – “soulless RIAA piece of shit” is probably a good quality in a lawyer, if he’s _your_ lawyer.
Linda Featheringill
Cool line. I nominate that person as winner of the internets today.
kay
@El Cid:
Conservatives want to narrow the reach of the commerce clause because the commerce clause is the basis of a lot of the modern regulatory state.
They’re still at war with FDR, and they never, ever give up.
In any event, this looks good.
Steve
Honestly, they should just admit it’s a substantive due process argument. That’s what it is.
White Trash Liberal
@ Southern Beale:
Some official in Tennessee must have gotten a Goatse.
kay
@Steve:
It’s funny, because the lawyer admits that. He also admits that’s a last ditch, and then he really has to dance around to make it something other than that.
That’s how he ends up at the bill of rights. The theoretical bill of rights :)
Sly
@Steve:
They can’t, because conservative jurists have spent the better part of a century trying to disassociate conservative legal theory from Lochner. Most likely, they’ll call it something else and give it the same working definition as substantive due process and just hope no one notices. The problem with these people is not that they’re stupid. Their problem is they think everyone else is stupid.
PeakVT
IANAL, but it seems to me that this can be jammed in under the combination of general Welfare + regulate Commerce + necessary and proper + incomes from whatever source. I admit that I want that to be the case, though, so I’m biased.
Southern Beale
I don’t understand why all of my comments are always awaiting moderation. Has my nym been flagged or something?
Southern Beale
@White Trash Liberal:
I’d ask you what a Goatse is but under Tennessee law I’d then have to sue you.
WyldPirate
The whole deal with the ACA can be boiled down into two issues:
1. First, it isn’t going to rein in costs one fucking bit (and save your OMB calculations and studies) because you have two big blood-sucking vulures) pulling the puppet strings of the Pols in DC–the Insurance lobby and he Medical lobby.
2. It isn’t going to matter anyway, because the Senate is going to flip Rethug in 2012 and there is a damned good chance that Black Jimmy Carter–who can’t lead a circle jerk much less an country–goes down in flames next November.
kay
@Sly:
That’s what was so nice to listen to. Someone noticed. Listening to media and conservatives, I had gotten caught up in the idea that media and conservatives were conducting this battle solely on PR grounds. I had forgotten that they were actually going to have to defend these ideas in front of people who know what they’re talking about and know what to ask.
Questions go to both sides! I forgot that, somehow.
I was so caught up in the political chatter, with media and conservatives bragging and swaggering and such, that it was a relief to listen to real substantive challenges to the conservative line we’ve been fed.
Davis X. Machina
Have they successfully distinguished:
the mortgage-income tax advantage, unavailable to those who don’t purchase a mortgage from a private entity,
and
the I-(or my company) bought-me-some-health-insurance income tax advantage, unavailable to those who buy (or have bought for them) health insurance?
Looks like either way the mortgage-interest tax deduction, the health-insurance purchase mandate, and the deductibility of employee health insurance as a business expense all stand and fall together.
JPL
Wouldn’t EMTALA be overturned if the Supreme Court ruled against the health care law. EMTALA is a mandate to treat the uninsured.
someguy
There’s no such thing as liberty, not in the law. There are the rights that the government grants to us in the Constitution. And there’s nothing in there about a right to show up at the ER and not have to pay for your health care. The longer the individual mandate spends in court the more optimistic I am about it holding up.
kay
@JPL:
That’s where the opponent’s lawyer had to concede the point. He admitted that the federal government can mandate payment, even mandate insurance, for uncompensated care at point of purchase. I feel as if once he concedes that, that the feds could mandate any person purchase insurance when arriving in the ER, he’s losing.
Because from that point on he’s arguing when the feds can mandate purchase, not if they can mandate purchase.
daveNYC
“Let’s try a thought experiment!”
Because the word ‘hypothetical’ was too hard to spell?
Goatse, tubgirl, two girls one cup. Ah, the classics.
rea
The Soliciter General is echoing some of Justice Holmes’ most celebrated lines:
This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious, or if you like as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Postoffice, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics.
Steve
@kay: That really is the crux of it. The reason health care is different from broccoli, or whatever else the government might hypothetically try to mandate, is that no one can simply say “I choose not to buy that.” Even if you’re dead-bang certain that you don’t need health insurance and you’ll pay for everything out of pocket, you can never guarantee that you won’t get hit by a bus and end up in the emergency room with bills you can’t pay.
I honestly find it quite odd that anyone, other than completely whacked-out libertarians, gets all worked up over people’s God-given right to go without health insurance. Yes, I understand, no one likes it when the government forces you to do something. But still!
someguy
@rea:
Too bad he didn’t mention Holmes’ most famous line to describe his Republican opponents: three generations of cretins is enough.
cat48
Hi Kay, The NYT Caucus was slightly amused with the brief since they used the prez full name. That’s never a good omen when they get the Hussein spelled out in full. It sounded like there is a Christian group involved some way too. I didn’t read it that closely and that was a few weeks ago. Take care.
El Cid
__
Maybe we can cut out those sections about banning Confederates from office and how rebel states can get back into the Union for lessons on Lamarckism of whatever Fittest we want to put in there.
Davis X. Machina
@cat48: Thomas More Law Center, probably.
Monaghan money, from Domino’s.
Yevgraf (fka Michael)
@Bulworth:
It would have been truly beautiful if he called it “the Constimatooshin of Ayn Rand” so as to deliver the mock with an unmistakable sledgehammer blow.
burnspbesq
@Bulworth:
“I hope this person has the “Acting” part of their title removed real soon.”
The only way that happens is by a recess appointment. Katyal represented Salim Hamdan before the Supreme Court. Can you imagine what a confirmation hearing would be like?
burnspbesq
@Citizen Alan:
Here we ago again with this asinine bullshit about hating lawyers because of who they represent?
You and Liz Cheney deserve each other.
A simple man
@ The Snarxist Formerly Known as Kryptik,
You, and the judge (who I suspect knows this and was just curious what answer she would get), have the argument reversed. The “Individual Liberty” argument needs no basis in law. Here’s why: the Constitution provides limited powers to the Federal government. If the Constitution doesn’t grant a power to the Federal government, the Federal government doesn’t have that power. The proper question to ask is, “where does the Constitution grant the Federal government the power to compel an individual to purchase a product?” An individual doesn’t have to prove the have some right to liberty, the Federal government has to prove the Constitution grants it the authority to pass the laws its passes.
The Commerce Clause grants the Federal gov’t the power to regulate interstate commerce, which has been interpretted to be almost any activity taken by a person. It has never been interpretted to include inaction or the failure to buy an item. If the Constitution does grant this power to the Federal government, then all Americans could be required to purchase American made cars, healthier food, high-speed internet access, etc. etc.
The Federal government clearly has the power to issue tax credits/deductions to individuals who do buy insurance or to simply send those folks cash, but it choose not to. It choose to penalize people for doing nothing.
Think of every industry or activity that could be viewed as being related to “interstate commerce” do you want the Federal government to have the power to penalize you for failing to purchase a specific item related to all that?
There are a variety of ways the Federal government could incentivise people to buy insurance; but, it choose not to. It decided to penalize people for doing nothing and I’m not one of those wack-o anti-government black helicopter people but I just don’t think the Federal government has (or should have) the power to require me to buy something.
The federal government could pass a law that states no person shall receive health care if they don’t buy insurance. And it could reimburse people for buying it. But, no one seems to be focusing on that.
Citizen Alan
@burnspbesq:
Right, because demonizing attorneys who represent terrorism suspects and in doing so defend the constitutional rights of all Americans is exactly the same as being appalled that our new Solicitor General is a corporate stooge who’s been spent the last several years undermining the First Amendment and the very idea of a public domain just so that copyright owners might not be deprived of a single penny that might arguably be theirs.
Fuck you, you rancid cum-stain. Fuck you until you bleed.
Villago Delenda Est
@Citizen Alan:
It’s worse than that. The RIAA drags its feet on actually paying out the royalties due to many of the copyright holders. Some artists have had to sue RIAA to get what RIAA was collecting on their behalf.
kay
@A simple man:
Actually, the judge is a man, and he isn’t confused. Conservatives tried two arguments in the lower case that failed. One was based on the Tenth Amendment, and the other was based on substantive due process.
The judge’s question is this: considering that conservatives have abandoned both the substantive due process and Tenth Amendment legal arguments, why are they continuing to use a “liberty” rhetorical argument?
The conservative lawyer then admits he’s abandoned those legal arguments (although he backtracks a little later) and searches for a legal basis. He finds one, eventually, by claiming that there would have been a prohibition against this type of action by the federal government in the constitution, had the founders anticipated modern commerce clause jurisprudence.
That’s not a legal basis for his individual liberty argument. It’s a hypothetical. Good for him fo trying, though :)
The judge wants to know if the lawyer is using the commerce clause to bootstrap into the (popular!) liberty argument, because the judge isn’t comfortable with that. It’s muddled. The judge wants the lawyer to be straight and clear with the judge on what they’re doing there.
They get is straightened out, but the judge isn’t wrong. The judge is asking a very good question: “what’s the legal basis for what you’re claiming?”
The lawyer didn’t really have an answer.
kay
@A simple man:
You started with your conclusion on where the commerce clause begins and ends, and then announced that was the rule. You started with your interpretation of what constitutes “activity” and then announced that’s the facts.
But that’s what the fight is about. The lawyer can’t just keep saying “because I say so”.
You can’t start with the conservative conclusion and then demand the judge abide by that, with no further questions on the reach of the commerce clause and also no questions on where or why you’re bringing in individual liberty, now can you?
I mean, that would be easy, wouldn’t it? If I don’t like a federal law, I just announce it’s unconstitutional? NO FURTHER QUESTIONS. Okey doke.
Why have courts at all?