I’m shocked. Shocked, I say:
CNN’s legal correspondent Jeffrey Toobin reports that the court’s conservative wing appeared skeptical of the Obama administration’s arguments in favor of the individual mandate provision of the Affordable Care Act.
“This was a train wreck for the Obama administration. This law looks like it’s going to be struck down,” Toobin said on CNN. “All of the predictions including mine that the justices would not have a problem with this law were wrong.”
“The only conservative justice who looked like he might uphold the law was Chief Justice Roberts who asked hard questions of both sides…
No one could have predicted.
The Snarxist Formerly Known As Kryptik
So….it’s gonna end up being slapped down en whole because we have a hyper partisan conservative bloc in the Court, meaning surprise! GOP wins the whole fucking shebang again because the poor get to suffer like they should.
Great.
Fwiffo
Some of the follow-up sounds less dire.
Still, it looks like it’s still headed toward the political/partisan decision that cynics would expect.
shortstop
I assumed you meant you weren’t surprised by Toobin’s whiplash-inducing dramatizations. Perhaps you did.
Mnemosyne
Jeffrey Toobin is a smart guy and a good commentator, but I’d like to see how some of his previous SC predictions panned out before I start tearing my hair out. Call me old-fashioned.
pete
I wouldn’t jump to conclusions just yet. If they were to uphold the ACA, they would have to show the right wing that they didn’t just roll over, and they would prefer to show that they are smarter than the administration lawyers. There is a lot of kabuki theater in these proceedings. Not that I am over-optimistic either, I’m just cautious …
Face
I for one await our resident legal experts to tell us how “obtuse” you are for suggesting this yesterday, and one fair maiden to tell me how ignorant I am for predicting a 5-4 reversal of the statute. I know it’s not over, but dayum do things look a lot like politics and less like legalese in the courtroom nowadays. Which was the point all along by us pessimists.
BGinCHI
So, a higher deficit, less health care coverage, more profits for health care companies, but more freedoms.
Yep, sounds like a conservative-majority court.
More freedom to die, that is.
Dave
Don’t go hypercritical yet. Both Roberts and Kennedy were talking about the uniqueness of the health-care market towards the end of the session. There’s still a lot of ballgame left to be played.
I am not surprised at all that Scalia, Alito and Thomas pretty much made up their minds beforehand. And Thomas continued his streak of not asking a single question since 2006. Really makes you have faith in the process…
mk3872
If mandating “buying things” is unconstitutional, then why does the healthcare law in Massachusettes still stand?
Why do I need to buy car insurance in my state? Or a license to fish & hunt?
PTirebiter
I am shocked. I know that I shouldn’t be but I am and reading this makes me feel a little sick.
Belafon (formerly anonevent)
Yeah, no one could have predicted the Jeffrey Toobin needed to keep himself relevant.
BGinCHI
Comments look smushed together. No spaces between paragraphs and after the second line they run over to the left.
The no spaces part is annoying, since the font here is already too small.
danimal
If they overturn, I hope they overturn everything, the whole ACA, rather than bits and pieces. The SCOTUS and GOP can own the chaos that follows. It won’t be pretty.
PeakVT
Unless someone can point me to a study that shows otherwise, I’m going to view interpretation of attitudes in oral arguments as a form of Kremlinology.
Attaturk
Being one of those “law-talkin'” guys who has argued an appellate case or two, trying to predict the outcome of a case based upon Oral Argument is a real suckers game.
Mnemosyne
Also, too, I think the people gaming this out aren’t taking all of the factors into consideration. Roberts has always struck me as a flat-out corporatist, not a Randian. I don’t know that he actually thinks in his heart of hearts that the government shouldn’t be allowed to make people buy products from private companies.
.
Striking down the PPACA means that a whole lot of corporations aren’t going to get the new customers they’ve been counting on. I don’t think Roberts’ calculation will be as simple as, “Obama wants it, so it sucks.”
shortstop
@BGinCHI: Double underscore on the line between your grafs.
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For example, like this.
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I am not going to make any predictions except that Toobin will continue to be a pain in the ass.
Spaghetti Lee
Wait a second, now is the one time we’re supposed to implicitly trust a Politico link?
mk3872
Not to be overly cynical, but if this law has been signed by a REPUBLICAN president, we wouldn’t even be listening to Supreme Court justices opinions on this right now.
It would have never been challenged AND Scalia & mini-Scalia would be arguing FOR it, just like their friends at the American Enterprise Institute championed 10 years ago.
jrg
Awesome! The last time SCOTUS had this much influence on an election, things turned out so well! Wheee!
Hill Dweller
As I said on the other thread, Scalia actually used the wingers’ broccoli analogy. Alito doesn’t seem to understand how insurance works.
Reading the tea leaves, which is admittedly dangerous, it sounds like Kennedy and Roberts are the swing votes.
mcd410x
This: @shortstop:
CT Voter
@Belafon (formerly anonevent):
Hoocoodanode!
Valdivia
Can I ask that you supplement the Politico link to one from ScotusBlog, where you can actually get a more nuanced if not less depressing (since it all comes down to Kennedy) analysis? Toobin today was like a hysteric that needs a slap or two to make sense again.
Citizen Alan
@mk3872:
There is nothing in the Constitution that would prevent a state from passing a mandate assuming that it violated neither Equal Protection nor Due Process. However, Congress is limited to its enumerated powers, and opponents of the ACA argue that the mandate is beyond them.
I said two years ago that it would be 5-4 with the outcome based on how Kennedy felt that day. I stand by that.
jaime
If corporations could get cancer, there would be no question about the constitutionality of Obamacare.
Xenos
@pete:
This sounds like my admittedly pollyanna-ish ‘cooling off the wingnut marks’ theory. Yet if the conservative justices need to let the administration to win, they ought to let them appear to win some of the theatre, right?
Tonal Crow
While I agree with John that the conservatives’ decision is very likely to be based on politics, I don’t think that what the justices ask during oral argument is much of a predictor of how they’ll rule. Justices use oral argument to explore alternatives, and that often involves various kinds of devil’s advocacy. It’s my unscientific impression that a justice’s alignment on the opinion often diverges from what you’d expect given her questions during oral argument.
Abo gato
I’m on the edge of old, but I recall in the 60’s that the government could mandate that all young men over 18 had to sign up for the draft and then be sent to Vietnam to kill or be killed. I don’t remember any conservatives at the time who got all riled up about government over reach. So why was that okay and this is not?
Dork
If there’s any quesiton of impartiality in the justices, Scalia’s use of “broccoli” as his example just torpedoed that. That’s a RW talking point and has been for awhile. It’s almost as if, instead of using any other object to throw us off the scent, he decided to telegraph is bias right off the bat.
I mean, when a SC justice is spouting Fox News points in place of legal questions, we’re fucked.
Belafon (formerly anonevent)
Seriously, though, it ought to be interesting explaining to my winger family members why their adult children are no longer on the insurance plans or why their drug costs have jumped if the entire law is found unconstitutional.
ChrisNYC
OMG Toobin’s sky is falling screaming is so unwelcome and just flat wrong. (I do believe he decided it was time to make some NEWS.) Check out scotusblog for a realistic assessment. Much less sensational.
I just read the transcript and Kennedy and (surprise!) Roberts were both asking questions of the ACA challengers that showed that those two Justices are, at the very very least, open to seeing the difference between the markets for healthcare and insurance and other goods. That’s the whole ball of wax. If those two or one of them decides that that’s enough of a limiting principle, they’ll uphold. If they don’t they’ll strike the mandate. My heart literally sank when I saw that Toobin nonsense but I feel pretty good now after reading the you know actual argument.
The issues were eventually articulated in a way that brought the real issue forward — is insurance and specifically health insurance different or not. Because I think the argument is very strong, I think today was a pretty good day for the ACA.
PS — It cracks me up no end that the “we know economics” free marketeers are in there saying that insurance is no different than any other product. They have completely abandoned any pretense of honesty.
mk3872
I take it Justice Thomas was his usual colloquial self again today adding lots of searing insights and snoring ?
Martin
I’m glad that Cole has firmly embraced the liberal freakout tendencies. Indeed, the sky is always falling.
chopper
@Mnemosyne:
indeed. besides, oral arguments before the court have gotten more and more meaningless over the years. kennedy is, as always, basking in his role as the swing vote, though rumors are that roberts will be a fence-sitter as well.
personally i find the biggest mistake is letting the mandate be characterized as forcing people to ‘purchase’ insurance, when it doesn’t. it merely demands that people carry insurance. if my 24-year-old kid with his own job and all is still on my insurance, he aint buying shit, and the gubbermint is not going to demand that he up and buy more insurance just for the sake of making him buy something.
if i’m an orphan and never got a job and am on medicaid or some shit like that, i have insurance too though i haven’t bought any insurance in my life.
the way i look at this law, the government is already paying for tons of health care in that hospitals are legally required to treat all comers even if they have no insurance and are indigent. and the government pays for that care from the tax base. so, the government is now going to charge everyone a fee (or tax or what have you) to cover this shit. you can get it waived if you decide to carry insurance (and if you can’t afford it, subsidies will cover the cost), because carrying insurance is encouraged here as it reduces the number of people who will go into an ER and put the bill on the taxpayer.
or you can refuse to carry insurance and pay the fee so that the costs to the taxpayer to provide health care when people like you pass out on the sidewalk and are taken to the hospital and stiff the doctors when you walk out get covered.
Ben Franklin
I think the decisions have been made. Commerce Clause questions are a show trial to display objectivity. Severability is key. ACA stands or falls on that issue. Without a large pool, nothing.
pragmatism
we don’t rebuke the broccoli mandate enough any more. same with stalin. please, SCOTUS, protect us from vegetables and dead dictators.
Steve
Toobin is a excitable guy. I think people should be cautious about jumping to conclusions at this point.
Bubblegum Tate
@Attaturk:
Delicious bourbon… brownest of the brown liquors… so tempting…. What’s that? You want me to drink you? But I’m in the middle of a trial!
pete
@Xenos: Meh. The justices take this stuff into chambers and write their own opinions, which come out so long after the oral arguments that no one really remembers the oral part unless they choose to quote it. I wouldn’t be pollyanna-ish, I just think Toobin is being a drama queen.
Belafon (formerly anonevent)
@Attaturk: Actually, give us some of your experience if you can.
David Koch
This should make the mandate hating firebaggers happy.
kindness
So now we have to wait till later this spring to see what really happens. Oh well….Could be worse. I’m not going to go nuts till the verdicts are announced, then…….
cyntax
@ChrisNYC:
Again? They do that at least once a week.
ChrisNYC
@mk3872: He said NOT a word.
PTirebiter
Fortunately, I checked some other opinions before breaking out the Tom Waits and Drano. LG&M has a little more nuanced and hopeful take on the arguments.
Dave
@ChrisNYC:
This. Health Care is the only market that every American participates in, be it actively in visiting doctors and/or filling prescriptions, or passively in paying taxes that pay for other people using the system. That’s why the broccoli and car arguments rankle me so much…they are demonstrably idiotic.
Bubblegum Tate
@Abo gato:
If I had to guess, I’d say they’d justify that as being related to the federal government’s duty to protect the nation or something like that. You know, because that’s totally what it was about.
shortstop
@Belafon (formerly anonevent): That’s if they’re lucky. You may be explaining to them why they’ve been turned down for coverage due to preexisting conditions or dropped summarily from their plans. I was thinking this morning that I might have to have that conversation with a friend whose back surgeries in her 30s have totaled more than a million dollars; she’s just pissed as hell about all this government takeover of healthcare because the government just can’t do anything right. It’s going to be a large shock to her when she learns what a lifetime cap is.
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I’m not Eeyoring, though, and I really hope we won’t ever have that conversation.
catclub
@danimal: there will be much more chaos if they just overturn the mandate. Keep the rest and the insurance companies rapidly go bust – presumably screaming and suing all the way.
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On another note, is it ipso facto unconstitutional that the government force one to buy something? Could you point to where in the constitution it might say such a thing?
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I know there were militia laws in which one was required to show up with a rifle — so that is forcing one to buy something.
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Just because it sounds like you might not like it, or it does not make sense, does not means something is unconstitutional. I think Scalia made a very famous comment about either torture, or cruel and unusual punishment, that horrified many people, but his point was ‘just because something is outrageous does not ipso facto make it unconstitutional’. How about this case and forcing someone to buy something?
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The real constraint to the specious slippery slope arguments is that if they force the people to buy something –AND THE PEOPLE DO NOT LIKE THAT — is that we vote em out and repeal the law.
ChrisNYC
@cyntax: I know and I knew that comment was coming. But, I mean, really, it had to be just a little embarrassing for Paul Clement to go in there and act like financing cancer treatment is same same to buying a car. He did a great job, given the degraded side he’s working for.
Davis X. Machina
@mk3872:
. Twenty-three. Check out page 6.… mandates, and the auto-insurance analogy. (PDF)
NR
For fuck’s sake, it is a foregone conclusion that the mandate will be upheld. The mandate results in a massive amount of money being transferred from American citizens to private corporations, and as we saw with the Citizens United decision, this court cares about corporations above everything else.
Scamp Dog
@Abo gato: It was OK because it satisfied the fundamental purpose of government: to do things TO people, not for them. Thus, war-making and incarceration are worthy goals, but a healthy and educated citizenry, an unpolluted environment and restraint of white-collar crime are horrible intrusions on freedom.
Judas Escargot, Your Postmodern Neighbor
@Belafon (formerly anonevent):
You forgot all the folks with pre-existing conditions who are about to be ‘liberated’ by the insurance companies.
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Somewhere between 8 and 24 million people will end up uninsured, depending on which study you choose to believe.
Martin
@pete: Yeah, this isn’t some esoteric topic the the Justices don’t understand. I think they not only understand it, but they understand why Medicare exists and why there’s Federal Flood Insurance and not a free market equivalent.
Splitting Image
Still not panicking. I said the other day that the vote would be either 6-3 or 7-2 and I’ll stick with that. Roberts won’t strike down the bill if he sees it as a net win for corporations. Not sure if he does see it that way, obviously, but I’m not going to worry about the sky falling until it actually comes down.
Just Some Fuckhead
On the bright side, this could continue Burns’ streak of being loudly wrong about everything.
Ben Franklin
On another note, is it ipso facto unconstitutional that the government force one to buy something? Could you point to where in the constitution it might say such a thing?
When you don’t buy insurance it is not passive, but active, as it affects others through your inaction.
burnspbesq
@Face:
The nature of questioning at oral argument is a notoriously bad predictor of how the justices will ultimately hold. Toobin knows that, so I’m wondering what his agenda is.
And yes, Cole is still obtuse and you’re still an idiot.
the fugitive uterus
is there some reason on earth, in the name of all that is holy, why Clarence Thomas was not involuntary recused??
slag
You can do this, JC. But if you turn out to be wrong in the end, you’re going to have to rethink your reasoning all the way through. No cheating!
burnspbesq
@Just Some Fuckhead:
This is me laughing at you. We’ll see who’s right.
The Ancient Randonneur
If I had to guess I will say that whoever ends up with the correct guess on which way the ruling goes will be hailed as a soothsaying Kreskinesque being, until the next time they guess wrong.
My guess? The sun will come up tomorrow and I won’t even have to dawn a red wig and sing an annoying song to be correct.
NR
@Ben Franklin:
Not necessarily.
Just Some Fuckhead
@the fugitive uterus:
Affirmative action.
schrodinger's cat
Beltway Pundits are wrong. Almost always. About most things. I will wait for the verdict to be in, before I start panicking.
burnspbesq
@the fugitive uterus:
Because there is no statute or rule that provides for it. SATSQ.
maven
My first memory of Toobin was the morning we waited for the OJ verdict. He predicted that because the jury deliberatioins were of short duration that OJ would without a doubt be found guilty.
Then Toobin became a regular CNN legal analyst and Gretta got her own show………
David Koch
This is a big victory for child molesting catholic Bishops.
Bye-bye contraception coverage.
Just Some Fuckhead
@burnspbesq:
If you’re right, we can put a giant “1” in your win column.
JGabriel
@chopper:
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Which is less surprising than it might appear at first. Roberts always sides with business — and the mandate was originally a conservative idea because it makes a LOT of money for insurance companies.
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That doesn’t mean Roberts will definitely vote in favor of the mandate. But it does mean Roberts has to think through whether or not he loves insurance companies more than he hates Obama and Democrats.
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.
Belafon (formerly anonevent)
@catclub: Actually, what’s even better is that one of the early Congresses forced commercial sailors to pay for government run health care in order to make our commercial sailing competitive with the rest of the world.
What Have The Romans Ever Done for Us? (formerly MarkJ)
@Dave: Well I’m pretty sure we all buy food. There’s a market for that too.
catclub
@ChrisNYC: tell me again where, if health insurance were NOT special, the constitution forbids the government from forcing you to buy something.
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I really have the sense that this was brought up because it
‘sounds like a bad thing’. But as I have pointed out, just because something sounds like a bad thing, that does lead to the conclusion that such a thing violates the US constitution.
Tom Betz
You may call me a bug-eyed optimist, but I think we win (in the long run) either way.
If the Supremes throw out the ACA, Obama can campaign against them and the GOP Congress, win re-election with long coattails and majorities in both Houses, and here comes Medicare For All on the rebound.
If the Supremes uphold the ACA, the for-profit insurance companies get out of the health insurance business because they can no longer make a big enough profit at it, and here comes Medicare for All out of sheer necessity.
Spaghetti Lee
@schrodinger’s cat:
Good news for John McCain, etc.
Citizen Alan
@the fugitive uterus:
Because there is no mechanism in this country for involuntary recusal of a Supreme Court justice. If a justice’s own mother were a party to a case being heard by the Supreme Court, there is nothing that requires that justice to recuse.
You know, other than moral or ethical character.
shortstop
@Just Some Fuckhead: Given that the misery associated with widespread death and carnage will far outstrip any minor eye-rolling pleasure, I’d rather he were a stopped clock on this one.
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@the fugitive uterus: No option for that. And thus may a scoundrel flourish on the USSC.
Tractarian
@PeakVT:
@Attaturk:
These guys have it right.
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In any event, if you’re going to play this particular sucker’s game, at least play it well.
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Think about it: If you were an appeals court justice, and you were strongly leaning one way on a case, how would your oral argument questions sound?
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If you knew that some of your colleagues were sitting on the fence, you might try to ask very difficult questions of the lawyer representing the side you intend to rule against, while letting the other side go easy. The idea being that you want to make the side you favor look better in order to influence your undecided colleagues.
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On the other hand, if you knew (as Justice Kennedy surely does) that almost all of your colleagues have already made up their minds, then influencing your colleagues doesn’t matter. Instead, you might use oral argument as an opportunity to have your questions answered and to make sure your initial inclination is correct. And guess what that entails? Asking tougher questions of the lawyer representing the side you intend to rule in favor of.
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How’s that for Kremlinology?
BDeevDad
Yesterday, Roberts was asking why the mandate was not just another tax:
remaining hopeful.
Belafon (formerly anonevent)
@catclub: And wasn’t there a Supreme Court ruling on farmers growing crops for their own use?
Spaghetti Lee
@What Have The Romans Ever Done for Us? (formerly MarkJ):
I think what distinguishes health care is that it’s something everybody buys and lots of people don’t buy until after they need it, which leads to the free rider problem of people getting health care without putting any money back into the system. You don’t have to tell people to buy food. And health insurance naturally follows health care because an insurance pool is the only way lots of people can pay for health care costs, which are very large and often appear without warning.
That’s my understanding of the whole ‘insurance/health care markets are different than other markets, thing.
catclub
@Ben Franklin: I realize insurance may be different.
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But, What I am asking is: Where in the constitution does it say the government cannot force you to buy something? It might sound ‘bad’ or ‘unfair’ or even outrageous, but is it UNconstituional?? — and where in the constitution would one find such a claim or basis for such a claim?
ThatLeftTurnInABQ
@jaime:
Isn’t this pretty much what happened to the financial sector leading up to the financial crisis in 2008? Rouge cells (mortgage-back securities, credit default swaps, and other complex derivaties) began multiplying, unrestrained by conventional mechanisms for controlling their growth (e.g. Glass-Steagall), then they metastasized throughout the host (the economy) and nearly killed it by consuming every available resource (money) and choking out healthy tissues (non-FIRE sector businesses).
shortstop
@David Koch: Be fair! Most of them are not doing the molesting themselves; they’re just bending over backwards to protect (and provide continued access to children for) the fellows who are. That requires a larger commitment of time, effort and moral bankruptcy than simply raping kids yourself does.
Just Some Fuckhead
@burnspbesq: In the spirit of full disclosure, when prompted months ago, I made the prediction of 6-3 uphold based on Roberts and Kennedy voting with the 4 moderate justices.
catclub
@Belafon (formerly anonevent): Commerce clause was used for crop limits. I am guessing late 30’s or early 1940s. That was a limitation on an action, but only in the most roundabout way forcing them to buy something — food.
Martin
@JGabriel:
Well, under the previous mandate incarnations that was true, but under this one not so much. Insurers really have no headroom to exploit the mandate, and because of how much better they’ve gotten at being able to predict who will be cheap and who will be expensive, the mandate winds up dumping a lot of pretty costly policies in their lap.
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One aspect of the law that the left doesn’t get, and its a bit infuriating, is that it’s set up to make the insurers very dependent on the government to keep them profitable. Where before the insurers wanted nothing more than the government to stay out of their business – because the quickest route to profitability was simply dumping the costly policyholders, now they’re going to be lobbying Congress to help them reduce the amount they pay out to doctors, hospitals, and so on. The insurance companies become our allies in reducing the cost of Medicare, rather than our opponents. That’s a very needed thing.
NR
@Tom Betz:
Oh man, this is the funniest thing I’ve read all week.
Dave
@What Have The Romans Ever Done for Us? (formerly MarkJ):
Different though. I cannot participate in that market and say, force a grocery to give me food without paying for it (like someone without insurance would use an ER). And I can theoretically opt out of the food market in a reasonable fashion (grow and kill my own food). There is no way for someone to completely opt-out of the health-care market.
Poopyman
Wait, so Toobin gets to cast the deciding vote on the court? I didn’t know that was how these things worked.
Look, no one knows how it’ll be adjudicated yet. I’m not optimistic myself, but I sure as hell am not going to hang on some/any journalist’s words as the final say in the matter.
Joel
Wait, it’s decided? I haven’t heard anything yet.
trex
@Mnemosyne
True. There are the conflicting feelings of a lot of different winger and interest groups for John Roberts to weigh on this matter. Does he want to rule against the ACA then have his insurance provider use rescission to sever the policies of his wife and kids in retaliation? Or rule in favor of it and hold his breath every time he turns the ignition on his car because Bubba has possibly rigged it to blow?
If the ACA is struck down on the mandate perhaps there is a future opportunity to make the case for a Medicare for All network on the basis of rescuing insurance companies struggling financially due to a missing mandate. Appealing to the sense of corporate empathy might be the only argument that is politically viable to win over the barking circus of winger groups. In their minds (and I use the term loosely) it is better to let 45 million go uninsured and 100 million be underinsured than one corporation go hungry.
Plus, if something like that were to fly we could claim ex post facto 11th-dimensional chess on Obama’s part.
Ben Franklin
Where in the constitution does it say the government cannot force you to buy something?
Kennedy gave the accepted rule of thumb with the example; You can’t be forced to come to the aid of a blind man who is about to be struck by a car.
As to the specificity re; Where is it in the Constitution? I don’t know.
Catsy
@shortstop:
So we’ve gone from having to use two underscores to keep the shitty comment editor from prematurely terminating blockquotes, to having to also now use them to force it to not completely unnecessarily strip blank lines that were intentionally written that way.
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That’s some upgrade. Exactly what is so difficult about not altering the original formatting of a comment?
Legalize
@Attaturk:
Thank you. Justices ask tough questions all the time of the side they are inclined to agree with, as a means of either (a) protecting the record to justify their decision (they are lawyers after all); or (b) convincing their colleagues. I’ve learned that lesson the hard way. If they lob softballs they either don’t give a shit about what you’re saying, or they don’t know what the fuck you’re talking about.
pete
@Martin: Yes, I agree that they understand the issue. That’s part of the kabuki element — since the political process has built this into a BFD, then the Supremes more or less have to do the same. However they rule, they need to come out as seeming to be Very Serious Persons who have Considered All Sides, etc etc. That’s part of why I think any kind of jumping to conclusions is simply foolish, though I wouldn’t go quite so far as to say they will produce a contrarian opinion.
David Koch
@Just Some Fuckhead:
IIRC, weren’t you against the individual mandate, as currently written? I would think you would be ecstatic with this development.
KG
I would cautiously bet on the law being upheld, mandate included, if only because over turning it also means possibly undoing Social Security and Medicare/Medicaid. I don’t think the justices, even Scalia/Thomas/Alito, would be willing to go that far.
The movement types know this is their last/best chance to go back to pre-Wickard and the land of Lochner. But the consequences of it might just be too much. It would entail a complete dismantling of what we think of as the federal government and put a gigantic strain on the States… not to mention possibly creating 50+ standards on what use to be federal issues.
catclub
@trex: “the barking circus of winger groups. In their minds (and I use the term loosely) it is better to let 45 million go uninsured and 100 million be underinsured than one corporation go hungry”
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I think you have this reversed. Roberts has to convince them that it is better to allow us to insure millions of (dusky) people than to let one health insurance company go under.
Judas Escargot, Your Postmodern Neighbor
I’m already wondering how a newly-weakened commerce clause will be used by the wingers to attack other things they don’t approve of.
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This war’s just getting started, sadly.
shortstop
@Catsy: As Cole notes several times a day, they’re still tweaking. Remain calm and use the stopgap I mentioned if you like.
Citizen Alan
@Belafon (formerly anonevent):
Wickard v. Filburn. It forms the basis of most of Congress’s power to regulate business post-Depression. And Clarence Thomas hates it with a fiery passion.
Ben Franklin
How is Toobin a SCOTUS wonk? His certainty displays a superficial slant.
“This is a trainwreck for the Obama Administration”
Spaghetti Lee
One analogy I used when butting heads with an Objectivist acquaintance back when this law was still in congress was if I buy, say, a microwave, the quality of how that microwave works is in no way dependent on how many other people buy it. It will work or not work either way. But “buying” into an insurance pool means that the quality of my product is very much dependent on how many other people buy into it. If I was in an insurance pool of myself and a few friends, it wouldn’t be nearly as good at doing the job of paying for accidents than a pool of 300 million people. So while ‘quality control’ for the microwave is determined by safety inspectors, regulatory boards, and such, ‘quality control’ for insurance at the very least has to examine whether a lack of financial resources causing it to fail could be the issue.
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Don’t know how that affects the SCOTUS ruling, but I found it interesting.
ChrisNYC
@Tractarian: I agree. The other thing that seemed to come out in the argument is that the Court knows this is huge and getting a lot of attention and, presumably, that the GOP has successfully cast it as sooo outrageous even though there is a pretty strong argument in favor of the mandate.
There did seem to be a bit of stagecraft in the questions, i.e. Justice Kennedy saying, right out of the box, that the US’s burden was “very very heavy.” Most people think that, most people want that to be true. Also, the absolutely spooky lack of questions about the real holes in challengers’ arguments as compared to the beating up on the Solicitor General. I don’t know — just seemed a bit engineered to create the impression of a hard fought issue that was not treated as a trifle.
Catsy
@Ben Franklin:
Christ, we are fucked if that’s the brain-dead quality of reasoning that Kennedy is bringing to this issue. Seriously? The idea that the law can’t impose a legal obligation for you to save someone’s life is relevant to whether or not you can be mandated to purchase a service? These two things have nothing in common with each other. They’re not even remotely analogous.
catclub
@Ben Franklin: “gave the accepted rule of thumb ”
—
Again with the common law assumptions and not the constitution! (I am not criticizing your statement, just frustrated.)
Triassic Sands
Reports that I heard claimed the government lawyer (Solicitor General Verrilli) appeared poorly prepared, especially when compared with the plaintiff’s lawyer (Clement) who was “brilliant.”
Why or how could that happen? Sure, the conservative justices may be hostile to the government’s case, but how could the Solicitor General appear poorly prepared after all the time that has passed and the importance of this issue?
Since I haven’t heard the hearings, I am dependent on what those who have heard them say. And the person who said that was not hostile to the PPACA.
I can deal with the five conservative justices ignoring the constitution and their previous opinions and finding the PPACA unconstitutional. I have come to accept that their jurisprudence is based on their desired outcome in some cases. But I expect the lawyer for the government to be able to answer (effectively) every question asked of him. He shouldn’t need Justice Ginsberg to come to his rescue, as one commentator claimed happened.
Just Some Fuckhead
@David Koch: Yes, I voted for Obama because he opposed the individual mandate and no, I’m not ecstatic about the possibility of it being ruled unconstitutional, but then I’m generally not given to excesses of joy.
At this point, I could probably best be described as mildly amused at the prospect of Republican-appointed judges overturning a Republican health care bill.
Citizen Alan
@catclub:
Congress CAN do things which are among its express or implied powers. It CANNOT do things outside the scope of its express or implied powers. Nothing in the Constitution allows Congress to make murder a crime, so Congress cannot pass a national murder statute. However, the 14th Amendment allows Congress to pass laws to ensure equal protection, so Congress can pass laws to allow for the prosecution of murders as part of hate crimes. Likewise, the Commerce Clause is understood to allow Congress to regulate things which have a substantial effect on interstate commerce, which has been interpreted to extend to things like drug trafficking and terrorism, thereby allowing Congress to prosecute murders committed in furtherance of those things.
Does that answer your question? Admittedly, it’s a little arcane for those who haven’t slogged through Con Law I.
Face
So you are dead wrong on a 7-2 to uphold, almost certainly wrong on a 6-3, and the whole thing is significantly closer to a 5-4 reversal, but somehow you’re not wrong and everyone else is an idiot anyways. There’s a reason people hate pompous arrogant lawyers.
lol chikinburd
I know it’s an entirely different court at a different level, but my own model for anticipating modern conservative jurisprudence comes from the way the Wisconsin Supreme Court handled that open meetings law case last year and put AB 10 into effect. Weeks of speculation as to how even an ideological court would have trouble contorting logic to reach a desired result were instantly mooted when the majority just made some shit up. Again, granted, that decision was the product of an especially corrupt state political culture, but it’s in keeping with other mounting evidence of conservative disdain for even the idea of law that differs appreciably from “of the jungle”.
Really, the only source of hope I have at this moment for ACA being upheld is that Jeffrey Toobin said it won’t be.
catclub
@Spaghetti Lee: “quality of how that microwave works ”
—
Is also dependent on a regulated power grid. Thanks government!
ThatLeftTurnInABQ
@Martin:
This is why I keep bringing up the Elkins Act and Hepburn Act as analogies to health care reform. A lot more folks got on-board (pardon the pun) with railroad tariff regulation once it was legislated that everybody had to pay the same rates.
catclub
@Citizen Alan: Thanks! It is of course opposite of what the opponents of PPACA are arguing, but at least was specific to the constitutionality.
Tonal Crow
@Ben Franklin:
Well, the federal government’s taxing and spending power (Art.I s.8 cl.1) effectively forces each of us to buy a universe of goods and services, albeit via intermediaries, often not for our own direct use or benefit, and sometimes against our strong objections (e.g., the invasion of Iraq).
__
The no-aid example doesn’t derive from the Constitution, but from British common law. I’m unaware whether any court has held that that principle is also supported by the 13th Amendment, though I’d argue that it is.
__
That said, the no-aid example has nothing to do with the mandate. The mandate exists to enable a functional health insurance market that gives everyone some kind of ability to obtain some minimum of health care. The mandate does not require anyone to personally assist a stranger who’s fallen in the gutter, which is the gist of the common-law rule.
Culture of Truth
Justice Kennedy:
“When you are changing the relation of the individual to the government in this — what we can stipulate is I think a unique way — do you not have a heavy burden of justification to show authorization under the Constitution?”
Laws signed by Democratic Presidents are unconstitutional unless they meet the “heavy burden” of showing “authorization.” Interesting how that works.
Just Some Fuckhead
@Catsy:
I watched a recent Supreme Court special on CSPAN and the interviews with Kennedy made him look like a buffoon. If that wasn’t bad enough, he has the red nose of a career alcoholic. (Maybe it was allergies.)
shortstop
@Face
__
“There’s a reason people hate pompous arrogant lawyers.”
__
People don’t hate pompous, arrogant lawyers when they’re competent. It’s continual ineptitude combined with habitual pomposity that inspires contempt.
Catsy
@shortstop: I would be more inclined to take that on faith if every subsequent upgrade hadn’t made the editor even more fucked-up and prone to reinterpreting the markup and formatting in comments in bizarre ways like this. It’s not like the blockquote mangling is a new problem–it’s just that now it’s affecting the entire comment too. Or for example the fact that the flat-out retarded spam filter still–for going on years now–is incapable of telling the difference between an exact string match and a substring when it comes to distinguishing between “cialis” and “socialism”.
__
I just cannot fathom why it’s so hard to find a WordPress comment editor that doesn’t do this kind of shit. There are thousands of WP-driven sites out there that don’t have these kinds of problems; maybe ask them what plugins they’re using?
Tonal Crow
@Culture of Truth:
Ya. Whatever happened to the “rational basis test”?
David Koch
This also signals SCOTUS will not uphold gay marriage in California.
Daaling
So let me get this straight. Wrong Again Cole is quoting CNN which is quoting Politico. Rrrright. Yea push the panic button…..lol
catclub
@Citizen Alan: So isn’t one of the Powers the ability to make laws for the general welfare?
—
Could the ‘forcing everyone to buy insurance’ come under general welfare, as well as commerce clause?
Mnemosyne
@NR:
No? When an uninsured person is taken to the hospital, who pays for that?
El Cid
Some experts and reporters have been urging caution, given that in prior cases harsh questioning by justices to one or other side doesn’t necessarily predict the outcome.
I’m not making a prediction myself, but I’m cautious regarding the degree of significance of this questioning.
Johannes
You will be stunned to hear that on FDL, the consensus is that it’s all Obama’s adult, and he should have made them pass single player, but his hand-picked SG is throwing the case, no doubt on the One’s orders…
As to the outcome, who he hell knows. Burns has a point, but so does Cole–as I pointed out yesterday, this Court’s decisions have been activist in a stunning way in areas with much less attention paid than to Citizens United, so I am nowhere near as sanguine as burns and eemom are. That said, Wickard is a helluva hurdle.
Edited due to autocorrect slander of commenter.
Ben Franklin
@catclub:
Yes. This is new to me, as well. That Common Law is the grease on the logistic wheels of The Constitution, and is not part of the document itself, seems foreign.
I share your frustration. Scaley’s metaphor of intestinal-gas producing broccoli, trips me out.
cyntax
@ChrisNYC:
I hear ya. It is funny how quickly they’ll chuck the hallowed free-marketiness out the window when the situation demands.
Davis X. Machina
@Tonal Crow:
Rational basis for me, strict scrutiny for thee. It’s in a Carolene footnote….
pragmatism
@Face: anyone who puts esq on their nom de commenting, license plate, etc. should raise your suspicion re: pompous.
Hal
Is it naive of me to think that the Justices don’t actually base their arguments on the strength of the one making the argument? In other words, they already have an idea of how they will rule. This whole thing is a dog and pony show.
catclub
@shortstop: “People don’t hate pompous, arrogant lawyers when they’re competent.”
—
Actually, they hate them even more, when opposed by same.
PeakVT
@Tractarian: Needs moar Politburo.
Punchy
Did I miss something, or is the filibuster still in play for the GOP?
SenyorDave
@David Koch: I’m convinced Scalia and Thomas would consider that elimination of SS, Medicare and Medicaid a good thing.
Tom Betz
@NR: You underestimate the force of rebound in American politics.
Millions of people who were once skeptical of the ACA have already seen great benefit from it. If the Supreme Court yanks those benefits out from under them, there will be hell to pay.
dedc79
If he pays attention to the Supreme Court the way he pays attention to election results, then you’re better off asking him about baseball scores than how the Court will vote.
Ben Franklin
@Tonal Crow:
The no-aid example doesn’t derive from the Constitution, but from British common law.
That was news to me. Thanks.
shortstop
@catclub: I s’pose so. But there’s room for a little respect to go along with the hatred in that formulation. Not so in the case discussed above.
MoZeu
Please don’t get your panties in a twist over Toobin’s hysterics. I like the guy, but he’s more of an entertainer than an analyst.
I predict a 6-4 split, with Kennedy and Roberts giving each other cover and joining the “liberal” Justices to uphold the law, including the mandate. They may break off and dissent to strike some minor part of the law for show, but I really do not think Roberts has it in him to do the embarrassing gymnastics that are required to strike this law. I hope I’m right.
MoZeu
Please don’t get your panties in a twist over Toobin’s hysterics. I like the guy, but he’s more of an entertainer than an analyst.
I predict a 6-3 split, with Kennedy and Roberts giving each other cover and joining the “liberal” Justices to uphold the law, including the mandate. They may break off and dissent to strike some minor part of the law for show, but I really do not think Roberts has it in him to do the embarrassing gymnastics that are required to strike this law. I hope I’m right.
Keith G
@Dave:
@ChrisNYC:
Both of the above are wise points (among others). I think what goes on in the Conference might be the ball game more than the chattering at the hearing. And I sure hope so, since when I listen to the arguments,
Hamilton BurgerDon Verrilli seemed to be often flat footed.__
Anyway, were ACA to be thrown out, I think it will move us closer to Medicare for all, some ways after Obama leaves office.
Napoleon
@maven:
Really? I am an attorney, but do no court work, but I have always heard the exact opposite from people who know. It is a lot tougher to decide that the prosecution has made its case then it is that the prosecution simply has not made its case.
By the way I also have heard that you can not tell from questions at oral arguements which way a judge may go.
Gin & Tonic
@Dave:
Never visit a doctor, hospital or pharmacy. Die quietly at home. Net cost to others = $0.
Catsy
@Tom Betz: This. As awful as it would be for many people if the ACA was overturned–and I sincerely hope it is not–the silver lining would be the backlash against the GOP and the SCOTUS for the consequences.
Tonal Crow
@catclub:
__
No! Congress may *tax and spend* for “the common Defence and general Welfare….” (Art.I s.8 cl.1). That does not authorize Congress to enact non-tax, non-spending legislation just because it determines that it’s for the “general Welfare”.
NR
@Mnemosyne:
Not every uninsured person goes to the hospital.
Just Some Fuckhead
@Hal:
Either way, they aren’t likely to be swayed by Verrilli. :)
David Koch
@Just Some Fuckhead:
Really, every hard core lefty from K-Thug to Greenwald supported the mandate, including in it’s current form. If you remember during the campaign, K-Thug consistently said you can’t be a true progressive and oppose the individual mandate, and for that reason he supported Hillary.
Kay
@MoZeu:
I like the idea that two uphold on taxing and four uphold on commerce clause. Roberts seemed taken with the idea that you don’t, actually, have to buy anything. You do have to pay a tax.
This is purely based on disliking sneering conservative men, all of them, but I think Roberts might like having his own independent smarter-person reason rather than going along with the silly liberals.
J.D. Rhoades
As an attorney who’s argued a lot of cases in front of a lot of courts, I can tell you: never try to predict the outcome by the judge’s questions. I’ve gotten raked over the coals–I’m talking serious, sweat-breaking-on-my-brow grilling here–and the judge has ended up ruling my way. I’ve gotten no questions at all, or at most some low-key, softball questions, and lost.
The fat lady ain’t even at the theater yet, y’all.
catclub
@Keith G: “some ways after Obama leaves office.”
—
To be exact: When the black helicopters of the One World Government finally kill the last of the wolverine resistance
on the american homeland.
Jennifer
Meh.
They’ve only heard a third of the argument so far. Seems a bit early to be predicting the outcome.
shortstop
@NR: Sheesh. Would you quit basing your arguments on the 20 or so Americans living in Unabomber cabins and remote mountain hollows who will never in their lives use the healthcare system? It’s tedious for us and ass-exposing for you.
Tonal Crow
@Davis X. Machina:
Railway Express, actually ;-)
NR
@Triassic Sands:
Don’t blame the lawyer. He’s been tasked with defending an incredibly shitty policy.
Ben Franklin
@David Koch:
We’re having a civil conversation, here. Take the Posse with you and GTFO
Just Some Fuckhead
@David Koch: So?
Citizen Alan
@Tonal Crow:
That’s where the Commerce Clause analysis comes in. If a law is a valid exercise of Commerce Clause powers, then it only needs to be rational. If it is not, then it is subject to strict scrutiny under which the government must show a compelling governmental interest that can basically only be overcome through this particular law. In Kennedy’s defense, the mandate IS a somewhat novel use of the Commerce Clause, and I do have concerns that if it is upheld, it may open the door to future Republican Congresses trying to pass laws that mandate the purchase of this or that in order to benefit donor corporations.
NR
@shortstop: Nice strawman.
Keith G
@Keith G: So the ‘del’ tag button did not work and when I save an edit, I am not returned to the thread. I blame Don Verrilli.
catclub
@Tonal Crow: Thanks! So if the geniuses on Capitol Hill had made it much more clearly a tax, that would help win the case.
—
Given that the penalty is paid to the IRS – not administered by a court proceeding, it already sounds like a tax to me.
—
They made a big deal (in day one oral arguments) of it being a tax PENALTY, rather than a tax. I do not see the difference.
shortstop
@NR: Christ. And get a dictionary.
trollhattan
SCOTUSblog:
At this point I’d support Zombie Reagan and Zombie Teddy K settling it with a drinking bout.
[edit: I see blockquotes are still farged up]
shortstop
@Keith G: He was really off his game when he worked on this redesign. Obviously BJ is doomed. DOOMED!
SamR
Can anyone link to Cole’s post from yesterday regarding this? I can’t seem to get to it either by simply going back, or clicking his name, or clicking the tag. I assume this is due to the site rebuild.
Martin
@Tom Betz:
Actually, not yet. 2014 is the key year. Lots of little pieces that help lots of edge groups (some quite a lot) up through next year, but 2014 is when all the really big stuff hits. I think the calculation was that this case wouldn’t arrive until 2015, when people really would have become much more enamored with the law. That it’s being heard in 2012 isn’t beneficial to Obama or to having public opinion on the side of upholding it.
Like Prop 8 may show, it’s easier to deny someone a benefit that they haven’t realized than to deny them one that they’ve grown accustomed to (even briefly). We need another 2 years for PPACA to really sink in for most people.
smintheus
Not 1 but 2 reasons why SCOTUS would hate on ACA:
(a) Partisanship…’nuff said
(b) ACA is lousy law. That’s because it’s a thinly disguised Republican idea, so it’s almost bound to be terrible.
The politics here are absolutely crazy. Republican justices harrumphing over provisions they’d staunchly defend as business friendly if the president were Republican. Democrats pretending they want the government to subsidize private business, and pretending not to notice that the burgeoning price tag will eventually threaten programs like Medicare. Obama pretending he never saw any legal objection to mandated private health insurance, and staking his legacy on fighting for a “compromise” that his opponents would never accept and his party could barely stomach.
shortstop
@SamR: Hereyabe.
maven
@Napoleon: My point was that Toobin was wrong on OJ with the reason he gave at the time; so perhaps he will also be wrong this time with whatever reasons he gives.
NR
@shortstop: Don’t need one. You obviously do.
Tonal Crow
@Citizen Alan:
No. Congress does not get to enact a statute absent some power rooted in the Constitution, even if the rootless statute would pass strict scrutiny (e.g., a statute generally banning murder without relation to involvement in interstate commerce, etc.).
trollhattan
@smintheus:
They’re nothing if not adroit at fighting their own ideas. See how they’ve turned cap-and-trade, which they invented during the acid rain fight, into a “Democrat” Party debacle WRT carbon emissions. Pretty spectacular gymnastics.
NCSteve
For whatever the opinion of another lawyer is worth, what you get asked and how it’s asked is about as accurate a predictor of whether whether you’ve won or lost an appeal as a coin flip.
As for “not prepared,” I think what he wasn’t prepared for was supposed intellectual heavyweights buying in to obviously specious arguments from the other side that he though had been thoroughly demolished in the briefs. He and his staff most likely thought up much better questions, that he was prepared for, than the ones he was actually asked.
Seriously, you expect A Game questions from federal appellate courts and, in particular, the Supremes and these were strictly knuckle-dragger know-nothing arguments. Which they failed to appreciate would nonetheless resonate with old, well-off white guys who’ve probably never gone a day in their entire adult lives when they weren’t covered by employer-provided health insurance.
NR
@trollhattan:
You realize that the other half of this story is that the Democrats are now advancing Republican ideas, right?
Ruckus
@Tom Betz:
Let’s say you are correct that it makes no difference which way USSC goes. What makes you think we end up anywhere but where we are today? Congress is worse than it was so how is medicare for all going to pass? And let’s say that USSC throws out ACA completely, progressives take back the house, hold(take) the senate and Obama is reelected, how many people will suffer and die before anything replaces ACA?
BTW I hold the controlling interest in several bridges. I can let you have one of them for cheap.
smintheus
Haven’t seen much commentary on this point, but I doubt SCOTUS will nullify the entire law. Result would be that the best provisions would remain intact. It’s the private insurers who would be cheesed off royally because they’d have to insure all applicants, but the young and healthy (and non-parents) would not have to buy in…the people whom they’d profit from the most under ACA.
Pongo
The real surprise here is that Toobin and other legal ‘experts’ still think the Supreme Court is interested in the law. They continue to be stunned by the partisan nature of the court’s decisions, as if each one is somehow an aberration instead of recognizing the very clear and evident pattern that has developed since Roberts took over.
I wonder if this might end up backfiring on the teabaggers? As someone who works in the field, the reality of the economics of our current situation is that it is 100% unsustainable and getting worse by the day. By blocking the effort to have private insurance involved in the solution, they might just be forcing a situation where we have to go to single payer by default. Wouldn’t that be a glorious bit of schadenfraude?
Napoleon
@maven:
I understood your point, but you (whether intentional or not) made a second point, which is he does not know what he is talking about. It is not just that he ended up not making the right call, but that he didn’t even know enough to know how to make the right call.
David Koch
@Just Some Fuckhead: So…, I guess this is the result you wanted on this particular issue.
Tonal Crow
@catclub:
Yes, though it might have lost them the votes needed to pass the thing.
I’m not really sure that I see a difference either. The tax code is filled with provisions intended to influence behavior, as well as to collect revenue. That said, there has to be some limit to Congress’s power to use the tax code to influence behavior, or it’d be a backdoor way for Congress to regulate everything, which is clearly not the Constitution’s overall intent. Is the mandate beyond that limit? Not in my view.
ThatLeftTurnInABQ
@trollhattan:
Do I understand this correctly? This is legal-speak for saying that the SG’s argument in favor of upholding the law have to have some reasonable finite boundary beyond which they no longer apply, i.e. the govt couldn’t turn around and use the same argument to mandate that we all have to purchase rocket-powered roller skates from the ACME corporation and hang out in the desert looking for a passing roadrunner to chase, kill and eat. Is that correct?
Citizen Alan
@catclub:
The General Welfare Clause in the Preamble has no constitutional effect. The Preamble is just pretty words as far as SCOTUS is concerned. The general welfare contained in the Tax and Spending Clause has been interpreted to mean that Congress has the general power to spend tax revenues on matters relevant to the general welfare. Which takes us back to the question of “is the mandate penalty a tax?” which yesterday’s arguments appeared to reject. More info on the General Welfare Clause can be found here, but if you look back at the history of this nation, it’s not surprising that the government has historically rejected any suggestion that it is obligated to look after the general welfare of its citizenry.
Martin
@Citizen Alan:
Except that the administration could have shown (I’ve not read the transcripts to know if they did this or not) that the benefit is not to the private sector but to the public sector in the form of Medicare costs, as that is one of the primary arguments for it – beyond offsetting the cost of the unfunded health care mandate that Reagan laid down.
The beneficiaries of the individual mandate are not the private sector but the US government itself. The mandate really is nothing more than an expansion of Medicare C, utilizing a different revenue model.
catclub
@SamR: I don’t know about linking, but I can get to the post by going to the top of the page and clicking on ‘Archives’ rather than recent posts, then scrolling down a few pages to older entries.
chopper
@Legalize:
exactly. again, look at the civil rights act. the justices ran the solicitor through the wringer and ended up upholding the law 8-1.
Ben Franklin
@Pongo:
They continue to be stunned by the partisan nature of the court’s decisions, as if each one is somehow an aberration instead of recognizing the very clear and evident pattern that has developed since Roberts took over.
That’s because their livelihoods are dependent on that illusion. SCOTUS replaces Oracles and Feuding GodHeads on Olympus. Some higher authority must countermand the rabble.
FlipYrWhig
Remember when the Supreme Court had oral arguments about a case involving strip-searching a 13-year-old for drugs, and Stephen Breyer asked a question that seemed to indicate that being made to undress in school wasn’t that big a deal, and the blogosphere lit up with charges of blatant misogyny among male justices? Well, that case ended up going 8-1 in favor of the girl, with Breyer on the right side. We don’t know yet where this health care case is headed, not from remarks made in oral arguments.
dedc79
@Tonal Crow: Right, strict scrutiny comes into play when certain constitutionally protected rights are implicated.
If a law has no basis in the constitution, it’s invalid and we don’t even get to different kinds of scrutiny. NOTE: I do think the ACA should be upheld as a permissible exercise of commerce clause powers
shortstop
@Pongo:
How does that happen? What are the steps between point A and point B?
Ben Franklin
@Pongo:
They continue to be stunned by the partisan nature of the court’s decisions, as if each one is somehow an aberration instead of recognizing the very clear and evident pattern that has developed since Roberts took over.
That’s because their livelihoods are dependent on that illusion. SCOTUS replaces Oracles and Feuding GodHeads on Olympus. Some higher authority must countermand the rabble.
Ben Franklin
@Pongo:
They continue to be stunned by the partisan nature of the court’s decisions, as if each one is somehow an aberration instead of recognizing the very clear and evident pattern that has developed since Roberts took over.
That’s because their livelihoods are dependent on that illusion. SCOTUS replaces Oracles and Feuding GodHeads on Olympus. Some higher authority must countermand the rabble.
MikeJ
@Martin: COngress passes laws benefiting private companies everyday. Boeing, LockMart, General Dynamics, thousands of companies would not exist at all if congress didn’t collect money from taxpayers and give it away to campaign contributors. Nobody can make the argument that it’s anything new.
Tonal Crow
@Citizen Alan:
The question is the tax-and-spend general welfare clause in Art.I s.8 cl.1, which very definitely has legal effect:
Some Loser
Why do I get the feeling that some here want to abolish the Supreme Court?
RP
The real winner today is Toobin. He’s managed to make himself a big part of the story.
Ben Franklin
@Pongo:
They continue to be stunned by the partisan nature of the court’s decisions, as if each one is somehow an aberration instead of recognizing the very clear and evident pattern that has developed since Roberts took over.
That’s because their livelihoods are dependent on that illusion. SCOTUS replaces Oracles and Feuding GodHeads on Olympus. Some higher authority must countermand the rabble.
smintheus
@NR: Both are true, and both strike me as crazy.
the fugitive uterus
@burnspbesq: ok i’m not as stupid as everyone thinks, just lazy and at work with no time to thoroughly investigate, and also mad – thanks for the clarification
Tonal Crow
@Citizen Alan:
The question is the tax-and-spend general welfare clause in Art.I s.8 cl.1, which very definitely has legal effect:
NR
@Martin:
Absolutely ridiculous. The government forces everyone in America to give money to private corporations–this is nothing but a direct benefit to the private sector.
Some Loser
Why do I get the feeling that some here want to abolish the Supreme Court?
Ben Franklin
@Pongo:
They continue to be stunned by the partisan nature of the court’s decisions, as if each one is somehow an aberration instead of recognizing the very clear and evident pattern that has developed since Roberts took over.
That’s because their livelihoods are dependent on that illusion. SCOTUS replaces Oracles and Feuding GodHeads on Olympus. Some higher authority must countermand the rabble.
Some Loser
Why do I get the feeling that some here want to abolish the Supreme Court?
Just Some Fuckhead
@David Koch: We don’t have a result yet and I’m a little creeped out by your focus on my feelings.
Did you have a larger point, something relevant to the case?
smintheus
@NR: Both are true, and both strike me as crazy.
Sloegin
Clearly this is eleven-dimensional chess turned up to eleven. Lousy Admin arguments will *force* the tribal Supremes to chuck the lot of it, wiping the field and leaving single-payer as the only reform option able to pass constitutional muster.
Hey, lemme enjoy the dream while I can…
Tonal Crow
@Citizen Alan:
The question is the tax-and-spend general welfare clause in Art.I s.8 cl.1, which very definitely has legal effect:
Ben Franklin
@Pongo:
They continue to be stunned by the partisan nature of the court’s decisions, as if each one is somehow an aberration instead of recognizing the very clear and evident pattern that has developed since Roberts took over.
That’s because their livelihoods are dependent on that illusion. SCOTUS replaces Oracles and Feuding GodHeads on Olympus. Some higher authority must countermand the rabble.
NR
@Martin:
Absolutely ridiculous. The government forces everyone in America to give money to private corporations–this is nothing but a direct benefit to the private sector.
Which, incidentally, is why the Roberts court will uphold the mandate.
Martin
@NR:
People keep saying that, and it’s profoundly stupid.
Democrats are advancing universal healthcare and compromising on how to fund it. Universal health care has never been a Republican idea. And the individual mandate was only a Republican idea as their own compromise to Democratic proposals. It’s a fall-back position for both sides. Nobody is particularly enamored with it.
But the statement is stupid because it suggests that universal health care is less important than the possibility that the GOP might become empowered that some small element of a Democratic goal contains something that the GOP is okay with. The argument reduces to “All Democratic bills are shit if even one Republican votes for it.” Good luck running a country with that attitude.
Tonal Crow
@Citizen Alan:
The question is the tax-and-spend general welfare clause in Art.I s.8 cl.1, which very definitely has legal effect:
Chyron HR
@NR:
Remember, kids, passing bills against unanimous Republican opposition is “advancing Republican ideas”. But joining up with the Tea Party to protest “Obamacare”? That’s not a Republican idea at all.
catclub
@ThatLeftTurnInABQ: I think the limiting principle should be – vote em out and repeal –
if they do something that is obviously stupid ( and enough people agree that it is so – not like the Iraq war thing.)
—
I say this because I think it is inherently impossible to write a text that prohibits all stupid and outrageous things, but still allows one to govern the nation under its terms.
David Koch
btw, for the fringe naderites who say ACA is a boon to corporatism, Scalia said it was right to make corporations to cover people with pre-existing conditions. So one of you guys forgot to send him the memo on how ACA is so lucrative to their corporate sponsors.
catclub
@ThatLeftTurnInABQ: I think the limiting principle should be – vote em out and repeal –
if they do something that is obviously stupid ( and enough people agree that it is so – not like the Iraq war thing.)
—
I say this because I think it is inherently impossible to write a text that prohibits all stupid and outrageous things, but still allows one to govern the nation under its terms.
gmf
I love how some quarters are saying how Roberts may want to avoid another “embarrassing” 5-4 split.
Like he gives a shit about the final tally is or who history sees his court 50 years in the future. I’m sure that – just like all the other right-wing extremists – his view is that history will prove him right once they set the country back on the right track.
At least if this fails, this won’t be the rallying cry for the right come November – that’ll give Obama four more years to have a chance of keeping the court sane.
Satanicpanic
@NR: Those ideas have Republican cooties on them!
Tonal Crow
@Citizen Alan:
The question is the tax-and-spend general welfare clause in Art.I s.8 cl.1, which very definitely has legal effect:
the fugitive uterus
thanks everyone for the clarification – i’m at work and do not have time to thoroughly investigate the recusal issue (thought i had read it could be applicable to Supreme Court cases) i was wrong and i was also mad – if ever there was an instance where a Justice should be booted off a case, it should be this one
Citizen Alan
@Tonal Crow:
You are completely right. Serves me right for trying to respond and eat a sandwich at the same time.
Tonal Crow
@Citizen Alan:
The question is the tax-and-spend general welfare clause in Art.I s.8 cl.1, which very definitely has legal effect:
General Stuck (Bravo Nope Zero)
Whatever will happen, will happen, I predict.
Now, where is the line for “Self Glorification”
Me Want
David Koch
btw, for the fringe naderites who say ACA is a boon to corporatism, Scalia said it was’t right to make corporations to cover people with pre-existing conditions. So one of you guys forgot to send him the memo on how ACA is so lucrative to their corporate sponsors.
Culture of Truth
I don’t care for all these questions about “could the government make you buy broccoli” or “could Obama make buy a muslim prayer rug” They’re irrelvent. Within the Commerce power? Pick one: (a) yes (b) no
Satanicpanic
@shortstop:
And why did no one get around to taking them for the entire 20th century?
Martin
@ThatLeftTurnInABQ:
Yes. Kennedy wants to know what would prevent a future health care law from mandating broccoli or from a Republican Congress from mandating purchase of dildos and wetsuits. They keep teeing up the ball. It’s up to the SG to hit it. I’ll try and read the transcripts tonight but I’ve not seen anyone directly comment on whether it was properly answered (my guess is not). SCOTUS is skeptical the Constitution intended to hand Congress a blank check regarding commerce.
General Stuck (Bravo Nope Zero)
Nobody panic, it’s just a negative comment feedback loop loop loop loop.
FlipYrWhig
@Martin: If there was a way for all Democrats to (1) simultaneously agree with each other to adhere across the board to liberal positions of the kind NR espouses and (2) have a majority in both houses of Congress, we’d have many better laws. But, the fact of the matter is, we don’t have that, so we make do with the best we can get, and let NR found the breakaway republic of NRistan where grubby consensus and slimy compromise never befoul the purer air.
kay
@FlipYrWhig:
Okay, but Toobin is hardly part of the blogosphere and he seems to have incited this panic all by himself.
You can’t do anything but laugh. I can’t wait for the next poll.
25% of people are going to think Obamacare was over-ruled.
Some Loser
@Satanicpanic: This was the impression I got from him.
Shit, I don’t care who wrote the goddamn law. It is better than what we have now, and it is worth having.
liberal
@Citizen Alan:
False (if the murder is committed overseas, anyway).
Ben Franklin
@Martin:
SCOTUSTeh Roberts Court is skeptical the Constitution intended to hand Congress a blank check regarding commerce.fxd
Citizen Alan
@Tonal Crow:
Yes, that was in the second half of my post, along with a relevant wiki link.
FlipYrWhig
@kay: I probably put too much emphasis on the blogosphere than was necessary. My guess is that Toobin is overreacting here the same way Dahlia Lithwick overreacted to the talk about underwear in the strip-search case.
Ben Franklin
235 edit failure.
Some Loser
@kay: If it wasn’t him, it’d been someone else. You know how liberals love to whine.
Culture of Truth
And I’m skeptical James Madison intended to give Opus Dei a blank check to “authorize” federal laws. But there you have it.
David in NY
I have heard (and it corresponds with my experiences in arguing a couple hundred appellate cases in the federal courts) that there is a close correlation between which lawyer gets asked the most questions and which one loses. Anyone want to count? Anyone have a view? (I’m not sure that the correlation was obtained from Scotus cases, which could make a difference.)
ThatLeftTurnInABQ
@Martin:
Thanks.
This sounds very relevant to the concern that Citizen Alan expressed in comment# 60. In terms of the politics of this case Kennedy is trying to find a way to open the door only just wide enough to let the PPACA pass thru but not wide enough to encourage mischief coming from future Congresses. That sounds like a good thing to me, but unfortunately it also sounds like the SG didn’t do an especially good job of providing him with assistance in threading this needle [or substitute the metaphor of your choice involving long objects and tight spaces].
Heh.
Martin
@NR:
That’s been happening for ages. It’s called Medicare. Yeah, it’s laundered through HHS first, but the net result is the same. How much taxpayer money needs to get laundered through HHS depends quite directly on your state of health when you arrive at Medicare’s door. And we know from umpteen bazillion studies – both medical and economic – that preventative care reduces the overall cost of care. Medicare can’t mandate preventative care because it (normally) doesn’t touch anyone before 65. The mandate is designed to do what Medicare cannot.
And we know that 65 year-olds consume vastly more medical services than 66 year-olds, per capita. We know that 65 year-olds visit the doctor 30% more often than 66 year-olds. We know that it’s because somewhere between where Social Security first kicks in for workers and when Medicare kicks in, that people start forgoing health coverage, biding their time, and then the moment they hit 65, they hit the Medicare menu like a teenager at a buffet.
The mandate’s primary job is to save Medicare by forcing people to stop deferring their care until they can dump it on the taxpayer dime – usually at a far higher cost than had they treated their conditions when they developed. Cholesterol drugs are cheap. Heart bypass is not.
You seem to be in denial that we spend 2x as much as anyone else per-captia on health care and that we should be able to cut that number in half. All of that money is going to the private sector whether it’s in mandated insurance premiums or whether it’s in Medicare compensated treatments. The goal is to shrink the % GDP level of health spending. If we do that, the only conclusion you can draw is that the private sector is getting less money, not more. And the early evidence from PPACA is that precisely that is happening – health care spending is slowing.
Tonal Crow
@liberal: Look carefully at how that statute is limited. It does not generally prohibit murder. That’s because it can’t, absent some relationship to Congress’s enumerated powers. The statute in question is based upon Congress’s Art.I s.8 cl.3 power to regulate, among other things, international commerce.
Martin
@Ben Franklin: Even if we had a really liberal court, they’d be asking for a lot for handing over that check. See choppers observation regarding Civil Rights at 187.
japa21
There is an old adage “follow the money”, which I think we should pay some notice to today. If the mandate goes down the tube, and the rest is untouched, insurance ompanies are in for a lot of trouble. They love the idea of all these previously uninsured people coming in to their grubby little hands, specially since many of them are such that they represent low risk. Without the mandate, but with the other restrictions in place, they will lose a lot of profitability.
So why did I say “Follow the money”? I just did a quick analysis of the stock prices of several of the largest insurance companies, such as CIGNA, Aetna, Humana and others. Around the middle of the day, all had lost ground, probably based upon the dire predictions. Yet, by the end of the day they all showed gains for the day. Not just moving up from the bottom level, but improving above the closing level from yesterday.
Although investors and Wall Styreet can be wrong, there must have been something which triggered the rebound. These people are betting on the mandate being upheld or not only the mandate but all other aspects of the bill being thrown out. And quite, honestly, I can’t see the latter happening.
Ben Franklin
@Martin:
Funny thing is; Roberts may be the linchpin.
rea
@Citizen Alan: Look at Marbury v Madison, for example. Chief Justice Marshall was Madison’s predecessor as secretary of state, and was personally involved in the events leading up to the case. He didn’t recuse himself.
Mnemosyne
@NR:
Please show me at least one (1) person in the United States who has never, ever seen a doctor or health professional for anything. Please note, this will require the person to have been born at home with no medical assistance (midwife is medical assistance, sorry), to have never seen the inside of a doctor’s office, and to have never received a single vaccination in their lives.
.
We’ll wait here while you locate this mythical unicorn of a person who has reached, say, the age of 40 in the United States with absolutely no contact with any type of healthcare who also will never require any healthcare in the future. They will never have an accident, or catch a disease, or have any kind of health problems that require them to see a doctor until they drop dead at the age of 80.
.
kay
@japa21:
I don’t really know what the “this great for insurance companies!” Is based on.
20 million people are coming into the exchanges. 3/4s of them are working people who don’t get health insurance through work.
Why do you think they’re low risk? I would think a lot of them have foregone any health care for years, are self-employed in non-desk jobs, work for crappy employers in red states, etc.
One of the reasons the high risk pools have been so expensive is we found out people were putting off major surgery until they could pay for it.
General Stuck (on self glorifiication)
Reading some of Kennedy’s remarks on “heavy burden”, he was asking why should the government be able to force people to buy insurance in relation to interstate commerce. I don’t see that as a big signal on how he will vote, because the answer to that question is that the US government already requires hospitals to provide that product under emergency conditions, regardless of health insurance status. Simply pre empting that moral hazard law, making people buy insurance, is not that much of a reach by the government. And everyone is prone to getting sick and injured.
FlipYrWhig
@Martin: That’s not what he’s in denial about. He’s in denial about the fact that people who want a better health care system and, for that matter, better health, aren’t willing to risk their current coverage regime for the promise of something better and fairer. A corporate-friendly, employer-based health care system is stupid and everyone hates it. That much is true. But propose to strike it down and switch everyone to a single-payer national health service _and they’ll go absolutely apeshit_.
__
It doesn’t matter that it’s a better system. It doesn’t matter that it saves money. It doesn’t matter that it provides better care. What matters is that you can’t get people to accept it or politicians to vote for it in sufficient numbers to make it happen.
__
“Obamacare” isn’t the platonic ideal of a health care system. It’s not the 1990s liberal ideal of a health care system. But it fucking well passed, barely, after tying up years of effort, so let’s bloody well make the best of it and stop caterwauling about lost opportunities and ideological skulduggery. Fuck and a half.
Lojasmo
@Just Some Fuckhead:
I hear some boys LOVE to be raped!
NR
@Mnemosyne:
Don’t try to change your argument in midstream. We were talking about people going to the hospital (specifically, uninsured people going to the ER), not “people who [have] never, ever seen a doctor or health professional for anything.”
Get back to me when you want to argue against what I actually said, not what you want to pretend I said.
Chris
And I’m now remembering Atticus Finch complaining that the National Recovery Act was killed, and when asked who did it, answering “nine old men.”
kay
@japa21:
80% of uninsured people qualify for a subsidy, which means 80% of the uninsured are btwn 133 and 400% of poverty, which is not a lot of income.
“Uninsured” doesn’t mean “low risk”
I think it’s more likely to mean “rarely receives health care, so might need a lot of it”
David Koch
@Just Some Fuckhead: Hah – can’t get creeped out, unless your creepy to begin with.
NR
@Martin: The ACA is virtually identical to the Republican health care reform bill from 1994 (which, incidentally, was authored by the Heritage Foundation). That is a simple fact.
Some Loser
@NR:
I want to jump in and point out you guys are actually discussing uninsured people receiving medical aid at the expense of insured people.
Mnemosyne point was that if you cannot show one person who has never benefited from medical assistance, then your argument falls flat on its face.
But Mnemosyne is a grown woman(?), and she can handle her own arguments.
Some Loser
@NR:
So what? What does it matter that the Republicans once authored an identical bill? I don’t see the problem with that. Republicans had a decent idea once; what’s the problem with that?
pseudonymous in nc
@NR:
So, where’s your time machine to get the Clinton-era reforms passed? Or are you just a simple purity troll?
NR
@Satanicpanic: Those Republican ideas are terrible.
The ACA is the Republican health care reform bill from 1994. So you know, President Clinton could have signed that piece of shit back then if he’d wanted to. But he didn’t. Because he knew it was a piece of shit back then. And it remains a piece of shit today.
NR
@pseudonymous in nc: Who’s talking about “Clinton-era reforms?” I don’t care about Clinton-era reforms. I want real health care reform today. And that’s not going to happen while the Democrats or the Republicans are in power.
Mnemosyne
@NR:
How is it changing the argument? You’re claiming that a government mandate to have insurance is unfair because some people don’t use healthcare. I would like you to provide me with one (1) example of a person who has never used healthcare, ever. Surely in a country of 350 million you can find at least one person to support your point that it’s unfair for everyone to pay for health insurance because s/he has never used healthcare of any kind.
.
pseudonymous in nc
@Kay:
I think you’ll see one of those six-part “concurs in part, dissents in part” or “concurs with the judgement for different reasons” opinions. Probably not a per curiam opinion, as I think Roberts wants to be the lead author on this whichever way it goes.
FlipYrWhig
@NR:
Wanting things is easy. Getting them is hard. How do you propose to do that?
Mnemosyne
@NR:
Because it didn’t pass Congress. It never even came up for a vote. On what planet do you think that the president is allowed to sign bills into law that don’t make it through Congress?
.
I think you missed a few verses of this important song if you think the reason healthcare didn’t become law in 1993 was because Clinton didn’t sign it (also known as a “veto”).
Daaling
Probably a good time to remind everyone that Cole was in lockstep with the Firebaggers during the fight in congress over passing Obamacare.
Cole was right there with all these clowns about how it was nothing short of evil unless it contained every far left wing wet dream including the holy grail public option and that it needed to die because it wasn’t perfect (and will never be)
So remember that next time Cole concern trolls about the supreme court thing. I suspect we will see a lot more fuckhead Cole concern trolling over the next few days.
pseudonymous in nc
@NR:
You have the option of closing your eyes, holding your breath and want-want-wanting till you fall over, or you have the option of growing the fuck up. You appear to prefer the former option, which is fine, but it also means you should be treated with the same deference as a small child having a hissyfit.
Tom Betz
@Ruckus: Because we can’t afford for-profit health insurance any more. Even the CEO of Aetna has recognized it. It’s been milked dry, so the for-profits are going to get out of the business, leaving it to government to clean up their mess, as usual.
Keith G
@NR:
So he (Clinton) vetoed the bill?
Just Some Fuckhead
@David Koch: Yeah, that makes as much sense as your earlier comments trying to tie the outcome of the Department of Health & Human Services vs. Florida to my feelings. Piss off troll.
Mnemosyne
@Keith G:
Apparently in the magic land that exists inside NR’s head, the bill passed both houses of Congress and Clinton vetoed it.
.
Here in reality, it was never even voted on and died in committee. I’ve actually pointed this out to him before, and he continues to pretend that his fantasy land is the real one and Wikipedia LIES!
.
NR
@Mnemosyne:
For fuck’s sake. Try to follow along here. You said “When an uninsured person is taken to the hospital, who pays for that?” And I said “Not every uninsured person goes to the hospital.” We were talking about the specific point of people going to the ER and needing services that they can’t pay for. Not “people using healthcare.”
And by the way, don’t try to pretend that you’re just trying to get people to pay for healthcare. The bill you support forces people to pay not only for healthcare, but also for CEO bonuses and corporate profits. Maybe you can’t understand how some people might not be too happy about that, but I can.
Ordovician Bighorn Dolomite (formerly rarely seen poster Fe E)
@Daaling:
That isn’t at all how I remember it. It seems that Cole took more heat for being an Obot than a Firebagger, but then I don’t really keep track of things like what John Cole believes (other than that he really likes Lily!), so if you can show him being a leftwing purity troll I will stand corrected.
Tonal Crow
@Just Some Fuckhead: And the lesson there is…don’t feed the troll, with the sole exception that feeding it only pie can be amusing.
_
Pie, pie, that sovereign balm,
It makes trolls retch,
And message-boards calm,
So keep it handy and keep it dry,
And deploy it well, ‘cuz it makes trolls cry!
NR
@Mnemosyne:
If President Clinton had come out in support of the bill and said “This is a great bill, I want to sign it,” it certainly would have.
NR
@FlipYrWhig: Step one is voting for a party that actually wants to provide it.
ChrisNYC
From the NYT article about Randy Barnett, crackpot libertarian and ACA opponent:
“He’s gotten an amazing amount of attention for an argument that he created out of whole cloth,” said one of his many critics, Douglas Laycock, a professor at the University of Virginia Law School. “Under existing case law this is a very easy case; this is obviously constitutional. I think he’s going to lose eight to one.”
I for one would like Professor Barnett to pay me back for the tax dollars consumed in these ACA challenges. He can repay us with the money he got for going on Glenn Beck.
Triassic Sands
@NR:
Yeah, an incredibly shitty policy that 85% of the lawyers polled by the ABA agreed is constitutional.
And the “shittiness” of the policy is irrelevant to its constitutionality.
Imagine how “skeptical” the conservatives would have been had the question of the individual mandate arisen under a Republican administration — remember, the individual mandate was championed by wingers until it became an “Obama” policy. The hypocrisy on this issue is stunning.
shortstop
@NR: It never even got out of committee. Do you have any idea at all how the legislative and executive branches work? Have you got anything to offer besides rank ignorance topped off with screechy whining?
shortstop
@NR: Oh, sweet Jesus. You’re 13 years old mentally and about 7 emotionally. Now put down those goalposts before you hurt somebody.
FlipYrWhig
@NR: In a world where law and policy are made by a government of nimrods elected by bigger nimrods, most of us learned to accept a baseline level of “not-too-happy” long, long ago. Either set about a project of spreading your political views sufficiently deeply and widely to get them translated into laws you like, or wallow in your righteousness. Your pick.
shortstop
@ChrisNYC: Good idea. Insist that it be in gold, too.
Martin
@Mnemosyne:
Actually, that’s not even the point. If you are found unconscious on the sidewalk, you WILL be brought to the emergency room, and you WILL be treated, and you have no say on the matter. This is not a system that consumers can opt out of. Therefore it cannot be a free market. Free market principles cannot work, because even if there was such a thing as a rational actor, they can’t make rational decisions while unconscious.
Just Some Fuckhead
@Tonal Crow: In my defense, I answered his question at #99 in good faith because I thought he might be asking in good faith, despite all evidence to the contrary in previous threads.
I’m a good person like that.
FlipYrWhig
@NR: Steps 2 through 70 million involve convincing other people to vote for this better party instead of the ones they’re voting for now. Good luck with that.
humperdinck2012!
It’s not really surprising that Scalia, who leads little indoctrination seminars for teabaggers on a regular basis, should emerge to spout one of their more obviously stupid arguments. It’s reasonably clear to the meanest intelligence that we have a choice about whether to eat broccoli or not – but we have no choice about requiring healthcare as a part of our lives. Heck, our first “act” of being born requires… why, yes.. healthcare. You know, midwives, nurses… all the happy paraphernalia of newly-minted, squawking brat-hood.
To me, the most promising moment thus far has been the realization by at least part of the conservative bloc that the mandate in fact offers a choice – you can choose not to buy healthcare and then accept the consequent penalty. In other words, you are not forced to buy a given good/service at all.
I think what we shall see is both Roberts and Kennedy upholding the ACA on the grounds that the mandate falls within the constitutional parameters of government as they have previously been understood – and because to strike down the law would raise the awkward question of whether the government can do a number of the things it has been doing for decades e.g. Medicare. Equally, if you arbitrarily set this limit to government power, contrary to precedent, what will you allow government to do? I don’t think Roberts wants to open the door to a government open to endless challenges and without any power at all, and this case has the potential to take us in that direction.
NR
@shortstop: Funny, insulting someone you disagree with when you can’t refute their arguments is the definition of immature behavior. Only one of us here is doing that, and it ain’t me.
Daaling
@Ordovician Bighorn Dolomite (formerly rarely seen poster Fe E): Concern trolling and being an Obot are 2 entirely different things. If you can’t tell the difference than you have much bigger problems than an inability to do your own search.
Daaling
@Ordovician Bighorn Dolomite (formerly rarely seen poster Fe E): Concern trolling and being an Obot are 2 entirely different things. If you can’t tell the difference than you have much bigger problems than an inability to do your own search.
Cole never came across a bandwagon he didn’t want to jump on. Whether it was his support of the Iraq invasion when that bandwagon rolled through, supporting Bush over Kerry because urrum liberty! or who the fuck knows. And more recently let’s see the dow is tanking with no end in sight, Obamacares sucks because it doesn’t have the public option so let’s just forget it. I could go on and on.
You can debate about a lot of things but there is one thing there is NO FUCKING way I will let you get away with. Trying to label someone an “Obot” when they only do it when everyone else is.
That is not standing for anything really other than what other people tell you that you should stand for at this instant. If you don’t stand for something like supporting Obama when it is not necessarily cool to do so or you don’t necessarily agree with him…well you will fall for anything.
Todd Dugdale
@mk3872: Yes, this.
Aren’t we compelled to purchase housing? You either have to buy a home or rent one. You can’t legally set up a shack in a public area, or sleep on a park bench. If you do that, you will subject to penalties for your “economic inactivity”.
There is no legal distinction between obtaining something as a gift from another person, and purchasing it yourself. So, if you stay with a friend or relative in their housing, you are still participating in “economic activity”.
It’s been this way for about a century, and nobody ever brought up any discussion about the government forcing someone to buy broccoli.
Satanicpanic
Oh jeez. If only Clinton had signed that bill that never passed. I mean, if only he had told Congress to pass the bill that they didn’t want, they would have passed it, then he could have signed it. That’s a lot of “if’s” there, buddy. More likely Clinton ended up with egg on his face after his first attempt at getting a bill passed and didn’t want to bother.
Satanicpanic
Oh jeez. If only Clinton had signed that bill that never passed. I mean, if only he had told Congress to pass the bill that they didn’t want, they would have passed it, then he could have signed it. That’s a lot of “if’s” there, buddy. More likely Clinton ended up with egg on his face after his first attempt at getting a bill passed and didn’t want to bother.
chopper
@Martin:
and of course if you wake up in the hospital the next day you may have already accrued thousands of dollars in medical bills.
truth be told, medical care is a lot different from most all other markets for this reason. forcing everyone to carry medical insurance is not like forcing everyone to carry car insurance (as so many people try to compare it to) or eat broccoli or have a cell phone, it’s more like demanding everyone’s home have a (regulated to be affordable) disaster insurance policy in order to lower the costs to the federal government whenever FEMA has to crank up the rescue trucks. because nobody in this country lives in an area where disasters don’t happen.
meanwhile, the government threw god-knows how many billions of dollars towards weather disasters last year and is the only real guarantor for a lot of people when it comes to flood insurance. why wouldn’t the government charge citizens a special tax or fee to cover that cost, and waive it if you prove that you live in a place with disaster insurance?
humperdinck2012!
@Todd Dugdale:
“The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”
les
@burnspbesq:
And you’re still a dick. All’s right in the world.
Tonal Crow
@Todd Dugdale: The question is not whether a state can effectively (or even explicitly) impose a mandate, but whether Congress can.
__
The difference is that state legislatures are legislatures of general jurisdiction — they can constitutionally enact any statute they want as long as it doesn’t violate some negative constitutional right (like the 1st Amendment).
__
Congress is a legislature of enumerated powers, which means it can enact only statutes rooted in one or more of those powers. The question here is whether the ACA’s mandate is rooted in the Commerce Clause (Art.I s.8 cl.3) and/or the tax-and-spend Clause (Art.I s.8 cl.1).
Bobby Thomson
@Daaling:
The same Cole who whipped Senators in the lame duck to pass the bill through reconciliation?
Yeah, whatever.
catclub
@Tonal Crow: … or neither.
Tonal Crow
@catclub:
I thought that “question” and “whether” implied the possibility of finding that the statute was or was not rooted.
Tonal Crow
@Bobby Thomson: I’m not sure that Cole did any whipping — Tim F. did most or all of the FPers’ whipping here ;-) — but I’m pretty sure that Cole agreed that the ACA should be enacted.
JG
Don’t know if it’s true or not, but Scalia could have asked the broccoli question for fun. The man has a wicked sense of humor. Judges sometimes enjoy asking the marginal-type questions because in sputtering around the easy ones, advocates can illustrate something interesting.
__
Who knows how this thing will turn out, but Toobin is a tv personality who used to be a decent legal analyst. His commentary over the Sotomayor hearings and even some on Kagan made me lose most of my respsect for him.
__
But it seems like Toobin made comments, several blogs John reads commented on them, then the sky fell. The more recent TPM post linked a few posts up gives a much better perspective on things.
Wilson Heath
6-3 for is not ridiculous. The media doesn’t know what they’re covering here.
ChrisNYC
Good for Harry Reid. Slammed Toobin.
http://thehill.com/blogs/healthwatch/legal-challenges/218531-reid-slams-toobin-says-justices-tough-questions-wont-mean-health-laws-demise
He knows how to be an advocate. Unlike our lefty internet which has always and will always love an opportunity to say, “BOO HOO the world is ending we are LOSING. Quick — let’s string up one of our own guys!”
les
@Tonal Crow:
Interesting point, but so far there’s no evidence for such a limit. US congresses have generally used the tax code to do economic/development planning, since to do it directly would be all soshulist and stuff. It’s the major reason the code is such a sludge fest. It would be easier, fairer, cheaper and more efficient to collect a reasonable tax from everybody, and just give money to industries/populations/economic sectors that we want to encourage, or that need it, as opposed to back dooring ways to not collect the tax in the first place–simply no way to target efficiently, and begs for corruption and gaming. But, we really can’t have nice things.
David Koch
@ChrisNYC:
Exactly. That’s what Fried said, it’s a no brainier 8-1. which was makes the court’s judicial activism so stark.
El Cid
@Tonal Crow: It wasn’t clear in the Constitution that there was any enumerated authority for the Supreme Court to judicially review what laws were and weren’t Constitutional. And the Founders weren’t at all necessarily in agreement that they had any such authority. So, enumeration isn’t always the biggest thing.
les
@kay:
And that’s the point; if people only seek insurance when they need it, it’s too expensive. If healthy people are forced into the pool, it’s not.
OzoneR
@mk3872:
No, we wouldn’t, but if this law was signed by a Republican president, I’d be pleased with the progress and push to make it better (i.e. ad Medicare-for all, or use it to implement single payer in the states)
I have little problem with the law except that it isn’t as progressive as I’d like, but I never expected it to be.
Truthfully, I never expected anything to pass at all.
kay
@les:
I don’t know where this robust, hale and hearty group of uninsured people came from.
I have a client who is uninsured. He lays carpet. He taped and splinted his own hand after they patched it up in the emergency room because he can’t afford proper care. He’s 50 years old and he’s never had health insurance. I don’t know that he’s “low risk”. He’s never had any health care at all.
Two years ago we were saying people would die w/out health insurance.
Now we’re saying they don’t need it, and they’re going to be paying premiums and not making claims because they’re “low risk”, so insurance companies will make out like bandits?
What is this based on?
mclaren
Yet more proof that Shithole America has worked long as hard to destroy itself…and it’s going to get its way.
Americans know the War on Drugs is destroying our society and turning the United States into a prison-industrial gulag…so what do we do? More war on drugs! More prisoners! More drug cops! Harsher laws!
Americans know our medical system is hopelessly broken, and costs are exploding out of control while employers are unable to afford insurance for their employees…so what do we do? Strike down the ACA!
Americans know Global Warming is creating rampant worldwide desertification, so what do we do? Roar around in giant SUVs on immense freeways, generating even more greenhouse gasses!
Americans know Peak Oil is coming, so what do we do? Climb into our cars and commute to work, eagerly burning fossile fuels like there’s no tomorrow!
Give it up. This shithole of a country is doomed. There’s a point of stupidity beyond which you just have to throw up your hands and say to yourself, “Well, they brought it on themselves, fuck ’em.”
OzoneR
@NR:
So? Republicans had some good ideas until they went batshit crazy.
OzoneR
@mclaren:
They do?
eemom
I thankfully missed this latest Dumbfest, but I do have to marvel at Trollbin’s confidence that the law will be struck down in the same breath that he admits ROBERTS looks like a yes vote.
And Cole laps it right up.
Priceless.
OzoneR
@NR:
And that’s too damn bad because imagine how much better we couldn’t made it since then. Imagine how more successful his first term would have been. Imagine how much better it would have been for our economy. Perhaps the recession wouldn’t have hit us so hard.
Patricia Kayden
Unfortunately, the majority of Americans are not in favor of the ACA, so I guess if it is struck down, many will be pleased.
As someone raised in Canada, I don’t understand the hysteria that surrounds healthcare discussions here in the US.
kay
@OzoneR:
Kennedy regretted not taking the deal, for just that reason.
It would have been a place to start.
Omnes Omnibus
@eemom: Which liberal does he think will vote against?
OzoneR
@kay:
That’s the point I think a lot of people are missing here. Sometimes it starts flawed and has to be changed and perfected over time. Sometimes its progress to solve a problem (progress being the first 7 letters in the term progressive)
Someone told me today that we haven’t had a progressive president in FDR, and I pointed out that FDR’s policies weren’t exactly the most progressive at first but were improved over time and he said “Well that’s what made him progressive”
Which is what I don’t understand. If that’s the case, then why wouldn’t ACA make Obama a progressive? We only have the opportunity to make it better over time.
OzoneR
@Patricia Kayden:
Cult of individuality. “The others are not my problem, its my tax dollars, its my choice”
Our name is a misnomer, we’re not where near a UNITED states.
kay
@OzoneR:
Leahy just said if this fails on the commerce clause they can come in and attack social security.
Which is true. The lead clown on this isn’t a Republican, he’s a libertarian, and libertarians have been wanting to roll back Lochner for years.
ChrisNYC
@Patricia Kayden: This is really not true. The latest CNN poll has a bare majority opposed to the mandate (51 to 45). The rest of the law is overwhelming, wildly, like 75% approve popular.
Daaling
@Bobby Thomson: Oh you got me there. Boy you sure showed me. Oh btw, those people in congress you speak of. Remind me again how one gets that job of representing the people who elected them?
But good gotcha. You sure showed me who has all the brains around here.
amk
US supreme court = Real DEATH PANEL !!!
Triassic Sands
@OzoneR:
Actually, the so-called good ideas of Republicans are mostly good only when compared with either doing nothing or the other, more reactionary garbage they typically propose.
For example, the individual mandate isn’t really a good idea, unless you accept that we have to have for-profit health insurance companies. If, instead, you propose a universal, single-payer system, the individual mandate is no longer a “good idea,” because it becomes totally unnecessary. Everyone is automatically included in the system; the idea of opting either in or out makes no sense.
Seniors don’t generally object to Medicare, because the alternatives are so bad. Being 65 at the mercy of for-profit insurance companies who can deny you coverage or set your premium at whatever level they choose to is not a desirable situation for most people.
It’s easy, but foolish, for healthy twenty-year-olds to assume they don’t need health care coverage. I heard one woman, who claimed to be healthy and still relatively young, say that she has a health savings account that meets her needs. But, of course, if she is one of the unfortunate people who develop cancer at a young age, her health savings account will be a joke and her ability to afford appropriate care will likely disappear. At that point, she will become dependent on doctors and hospitals to write off the cost of the care she can’t afford, or she will simply have to accept a miserable, premature death. It’s amazing to me that she can’t see that. But she’s an American. Naturally, her confidence in her HSA is based on her naive belief that because she is healthy, she will remain healthy. It’s a gamble, but it’s a gamble that most Americans (of her mindset) believe they can’t lose.
NR
@Triassic Sands:
This, exactly. This is exactly the false dichotomy that Obama and the Democratic leadership have expertly set up over the last three years and that everyone here has bought into whole-heartedly. They’ve been using the Republicans as the Bad Cops so that they can play the Good Cops and make everyone feel good that something got done–even when that something is the passage of right-wing legislation.
And even now, if anyone here says they didn’t want the ACA to pass, people jump all over them, saying “Oh, so you wanted nothing instead? You wanted people to DIE?!?!?” as if either the ACA or nothing were the only choices.
Of course, what they either don’t realize or won’t admit is that those were the only choices because the Democrats decided they would be the only choices.
liberal
@Tonal Crow:
LOL.
Mnemosyne
@NR:
.
So your point is that because some people, somewhere, won’t go to the ER if they’re having a heart attack because they can’t afford it, it’s unfair for them to have to pay for health insurance?
.
Insurance buys you access to healthcare. That may not be the best way for it to work, but that’s how it works in the US. You are arguing that people should be allowed to opt out and not have access to healthcare if it means they have to pay for it.
.
My argument is that EVERYONE USES HEALTHCARE. Every single person in the United States of America will use healthcare at some point in their lives. Shouldn’t everyone pay some amount into the system, even if only through a tax penalty, rather than letting some people free-ride and others be hounded into bankruptcy?
.
But, as usual, you prefer to ignore the actual reality on the ground and live in your magical pony land instead of helping actual living, breathing people right now, today. How does this make you any different than the fetus fans who don’t care what happens to actual women as long as theoretical people are protected from any potential harm?
.
So tell us, oh wise one — what was the other viable choice in November of 2009? Or in February of 2010? Not what choice you theoretically would have like to have seen in an ideal world, but on those actual dates in actual years that actually happened, what was the alternate choice between “Pass the bill” and “kill the bill”?
.
.
OzoneR
@NR:
Those were the only choices, because, yeah, the Democrats decided they were the only choices, the votes and the support did not exist for anything else and Congress wasn’t elected on the promise of bringing single payer- most of them didn’t even promise healthcare reform and some who did (Lieberman) broke their promise. This is his last year as a Senator.
And I’m talking about Republican ideas from years ago, not now. I would have been thrilled with this healthcare bill in 1993. For no other reason than it likely would NOT have looked like that now and it would have created a foundation to build on. If you want to tell me they wouldn’t have proposed it in 1993 if they knew Clinton would sign it, then fine, but we’re arguing on the assumption that they would have.
I’ve been here long enough to know that for whatever reason you have some personal issues with the Democratic Party and you’re not serious since you offer no solution except “they all suck,” which isn’t a fucking solution, but for anyone who thinks you are, that’s my rebuttal.
If you can’t understand what the word progress means, you’re not a progressive.
Mnemosyne
@Triassic Sands:
.
So the individual mandate is bad because it makes our new system more like a single-payer system?
.
I realize people want a single-payer system like, tomorrow, and don’t want to have to go through any intermediate steps, but every single country that has universal health care had to go through those intermediate steps. What makes the US so special that you think we can jump from A to Z without having to make any of the systematic changes over several decades that Canada or France or Britain made?
.
South Korea’s healthcare system was considered a “miracle” because it only took them fifteen years to go from all private insurance to a single payer system. But the US was supposed to do it with a single bill or else it doesn’t count?
David Koch
@Just Some Fuckhead: you’re so cute. a delicate flower, complete with thin skin.
OzoneR
@Mnemosyne:
I don’t think we’ll ever see single payer on a federal level because it requires the government destroy and dismantle and entire private industry, no way SCOTUS allows that and besides that, it would be severe economic damage to do it all at once. What happens to the millions of people who work for insurance companies?
It’ll have to come state by state or by allowing a Medicare buy in and there will probably be private supplemental options.
Plus, it doesn’t really solve the entire issue with the cost of healthcare, of which private insurance profits are only a piece of the problem.
Mnemosyne
@OzoneR:
.
Looking at PPACA, it seems pretty clearly designed to slowly strangle the for-profit insurance companies until they voluntarily leave the market because they can’t make massive profits anymore. Nonprofits like Kaiser would probably stay, but as more and more provisions go into effect with PPACA (and, hopefully, as more are added through new legislation), companies like Tenet or Cigna will either go non-profit or get out of the healthcare business because they just aren’t going to be able to make enough money to make Wall Street happy.
.
Of course, people like NR don’t want to look at the actual law and its actual provisions because there isn’t a picture of a pony on the front page and GODDAMNIT HE WAS PROMISED A PONY!
.
NR
@Mnemosyne:
That is not what I’m saying at all, and at this point I have to conclude that you’re just being deliberately obtuse.
Not everyone is going to have a heart attack. Not everyone is going to need to go to the ER. The initial argument that I responded to ages ago is that not buying insurance “affects others through your inaction.” My point is simply that it doesn’t do this if no one else ever has to pay for your health care.
And I note that you are still trying to pretend that you are only trying to get people to pay for health care. You’re not. By supporting the ACA, you are also trying to force them to pay for the CEO of Aetna’s third mansion in the Caymans. But I guess you’d rather ignore that inconvenient fact.
NR
@Mnemosyne:
Wow, I wasn’t aware that the universe began in November of 2009!
By picking those dates, you reveal that you’re arguing in bad faith. Sure, those were the only options after the Democrats took all the other options off the table. My point is that we shouldn’t have let them take those options off the table in the first place.
NobodySpecial
I for one hope the law sticks around solely because if it vanishes, I’ll suffer ear damage from all the screaming here from those who thought we were going forward one step at a time instead of doing the Curly Shuffle.
El Cid
Latest reporting from The Onion:
Mnemosyne
@NR:
This is why I keep asking you to show me any person in the United States who has never, even once, needed healthcare. Only a person who has never seen a doctor, never gotten a vaccination, and never had an accident can honestly say that no one else has ever had to pay for their health care. If you have gotten any healthcare at all, someone else helped pay for it either through being in the same insurance pool or through taxes if you’re uninsured. Even if you paid for it in cash, your doctor ain’t supporting himself on cash payments from uninsured patients. He’s supporting himself with the money he gets from insurance companies and taxpayers, ie other people’s money that’s financing your ability to pay cash and stay uninsured.
.
So find me that uninsured person who has never used any healthcare and will never need any healthcare at any point in the future. Heck, you should be able to find a dozen since you seem to think that the majority of uninsured people will never need health care at any point in their lives so it’s unfair for them to have to pay into the system.
.
Ah, so we’re supposed to ignore reality and history so we can instead live in your magical pony land where Bill Clinton totally vetoed his healthcare bill. We’re supposed to only think about what could theoretically have been possible instead of looking at the actual choices that were presented to us.
.
I hope the weather is nice in your magical pony land, because you’re not getting much else out of it.
.
NR
@Mnemosyne:
That’s a fucking ridiculous argument. By this logic, all the other customers at your grocery store are subsidizing your food. After all, they ain’t getting by on your money alone.
Are you seriously this dense? Yes, that is exactly how you analyze a situation. You look at what was possible and compare it to the result you got. You don’t blindly accept that the choices you were presented with in the end were the only possibilities.
You remind me of the kind of religious fanatic that Voltaire so expertly satirized in Candide. God is good, therefore this is the best of all possible worlds, therefore any evil that happens is both absolutely necessary and the least that it could possibly be. Just replace “God” with “Obama and the Democrats” and you’re good to go.
Mnemosyne
@NR:
Yes, you’re a rugged individualist who pays full market value for all of his food, because taxpayer funded farm subsidies don’t exist. Do you really not understand how living in a society works?
.
You seem to have quite a different definition of “possible” than most people. You think “possible” means “every single theoretical outcome in the entire universe of outcomes” whereas most people think it means “outcomes that were likely given the available choices.”
.
Again, you need to explain what you see as the other possible choice once the bill was written. I know you only want to argue in an imaginary universe where there were many competing possible bills but, again, that’s your magical pony universe where it’s equally possible that jumping off a 20-story building could lead to death or it could lead to magically learning to fly — after all, anything is possible!
.
Wow. I can’t believe that the guy who’s arguing that his fantasy baseball idea of the healthcare fight should trump reality is actually making the Candide argument. You should have movie times on your forehead if you’re going to project that insistently.
.
Mutaman
@Mnemosyne:
Toobin said on Charlie Rose Monday night that the law would be upheld 7-2. 12 hours later he did a total 180. After 1 day of oral argument. I was not impressed.
NR
@Mnemosyne:
Once again: The universe did not begin after the bill was written. I wholly reject your bullshit frame.
Reality is that the Democrats passed a shitty bill and they could have passed a better one. Reality is that they chose not to do so. Don’t talk to me about reality when you clearly have no idea what it is.
David Koch
@El Cid: Sadly The Onion isn’t joking. Scalia said today the cost of health insurance would be solved if companies are allowed to deny healthcare to people with preexisting conditions. Talk about Death Panels.
InsaneCaliCat
I’m still livid. I don’t understand and Verrilli could have been so unprepared today. Even if just for “optics” sake he should have had his shit together – considering what’s at stake. He should have had an answer prepared for every stupid, wing-nut question old Scales-lia could have put out there. Sorry, but there is no excuse for Verrilli’s poor performance today. None. Yeah, I’m in an off-with-his-head state of mind.
Also too, Jeffrey TooLbin is an idiot.
Bobby Thomson
@David Koch: I thought Lopez was a slam dunk, too. Until the argument.