Supreme Court to Rule On Patient Protection and Affordable Care Act

[Ibleedburgundy]

OK so we've probably all been reading up on the supreme court arguments that have been going on regarding ther Patient Protection and Affordable Care Act. The decision doesn't strike me as all that complex. The arguments being had in the SC are hardly any different from what you find on message boards all over the interwebs.

I'm attaching a poll for predictions on how the SC will rule. Not what you want to happen mind you, but what you think will happen.

Seems to me the entire case swings on the wild unpredictability of the conservative justices and their incoherent philosophy.

Poll attached.

[akhhorus]

6-3(Kennedy, Roberts, Kagan, Breyer, Soto and Ginsburg) to strike the mandate narrowly, keep the rest of the law. Sounds like they liked the outside counsel's argument on narrowly striking the mandate more then the ASG's one on "if you strike it, you have to strike xyz" also. It also sounds like they would like Congress to modify the law with or without the mandate.

[RedskinsDave]

The law can't exist without the mandate or at least not be paid for. That's been the whole catch all along. In order to pay for health care for people who don't pay for it themselves, you have to make sure the people who do pay for things are doing so at a high enough level to compensate.

[akhhorus]

Originally Posted by RedskinsDave

The law can't exist without the mandate or at least not be paid for. That's been the whole catch all along. In order to pay for health care for people who don't pay for it themselves, you have to make sure the people who do pay for things are doing so at a high enough level to compensate.

Some of it clearly are linked to the mandate, but as Roberts said today "most of the law has nothing at all to do with what we're discussing" and SCOTUS(and especially the Roberts court) has been very deferential to the fed when it comes to granting severance.

[shally]

Originally Posted by akhhorus

Some of it clearly are linked to the mandate, but as Roberts said today "most of the law has nothing at all to do with what we're discussing" and SCOTUS(and especially the Roberts court) has been very deferential to the fed when it comes to granting severance.

i agree with you.. i think they hand down a narrow ruling on the mandate and leave the rest for Congress to tinker around the edges with (although nothing will happen until after election in 2012)

that will also give some cover to GOP who can say, it curtailed the government's power and yet at the same time left some protections (like pre existing conditions) in place

BUT the net effect will be to let insurance prices rise.. they have already been going up and i think this will only spur them even higher

in some ways it actually helps Obama since it takes some of the impetus away from the GOP to be able to run against him directly in 2012 on this issue

if the ENTIRE law is struck, i think it will actually help Obama's re election since it will energize the Liberal base and will give them the platform or running against an "activist court"

the decision will be 5-4 and no broader than that.. the 4 Liberal judges will hang together on this one..Kennedy will write the majority opinion

[akhhorus]

Originally Posted by shally

i agree with you.. i think they hand down a narrow ruling on the mandate and leave the rest for Congress to tinker around the edges with (although nothing will happen until after election in 2012)

There were a LOT of comments along these lines from both sides of the aisle today. Everyone wants Congress to fix the problems so that they don't have to vote a way they don't want to. Ironically this might help the fate of the mandate.

Originally Posted by shally

that will also give some cover to GOP who can say, it curtailed the government's power and yet at the same time left some protections (like pre existing conditions) in place

BUT the net effect will be to let insurance prices rise.. they have already been going up and i think this will only spur them even higher

Hopefully this will interject some sanity into this discussion and go with the dutch/swiss model or at the very least some sort of co-op system along with getting rid of the anti-trust exemption.

Originally Posted by shally

if the ENTIRE law is struck, i think it will actually help Obama's re election since it will energize the Liberal base and will give them the platform or running against an "activist court"

Irony...oh irony lol. The partisan political nightmare is if Kennedy et al strike down medicare as coercive to the states(the feds aren't going to pay for the levels that they are now if it means the states can do whatever they want with it). Well, lets just say that the Dems will have enough votes in the senate and House to pass whatever they want(which would be a federal single payer plan) lol

Originally Posted by shally

the decision will be 5-4 and no broader than that.. the 4 Liberal judges will hang together on this one..Kennedy will write the majority opinion

If the decision is, as former Kennedy clerk Orin Kerr said, "kennedy finds a limiting principle for the commerce clause in his head", and its 5-4 to uphold the mandate and law. I could buy 6-3/7-2 to strike the mandate but keep the law intact(with a strong urging to congress to make modifications).

[shally]

Originally Posted by akhhorus

There were a LOT of comments along these lines from both sides of the aisle today. Everyone wants Congress to fix the problems so that they don't have to vote a way they don't want to. Ironically this might help the fate of the mandate.



Hopefully this will interject some sanity into this discussion and go with the dutch/swiss model or at the very least some sort of co-op system along with getting rid of the anti-trust exemption.



Irony...oh irony lol. The partisan political nightmare is if Kennedy et al strike down medicare as coercive to the states(the feds aren't going to pay for the levels that they are now if it means the states can do whatever they want with it). Well, lets just say that the Dems will have enough votes in the senate and House to pass whatever they want(which would be a federal single payer plan) lol



If the decision is, as former Kennedy clerk Orin Kerr said, "kennedy finds a judicial limit for the commerce clause in his head", and its 5-4 to uphold the mandate and law. I could buy 6-3/7-2 to strike the mandate but keep the law intact(with a strong urging to congress to make modifications).

i dont see Soto, Kagan, Ginsberg, or Breyer voting for ANYTHING that limits government power.. no matter what happens, this will be a very close vote

[akhhorus]

Originally Posted by shally

i dont see Soto, Kagan, Ginsberg, or Breyer voting for ANYTHING that limits government power.. no matter what happens, this will be a very close vote

There's no justice that is always for limiting gov power. Scalia and Thomas had no problem with gov power when it came to terror suspects, wiretapping, bush v gore, etc.

The irony to all this is that there is a clear judicial limit in the Commerce clause: anything that isn't interstate commerce.

[justinskins]

My bold prediction is a that they will uphold the law as written, 6-3. Ultimately, the argument about the mandate seems like quibbling to me. The federal government already forces individuals to buy disability insurance and insurance against the hardships of old age. It's called social security and medicare. The only difference in this case is that the insurance is administered by private companies, not by the government. How Obamacare concerns interstate commerce any less than social security is quite beyond me. Overturning this law would be a major departure. Maybe the Roberts court is ready to go there, but I'm not going to bank on it.

I'll admit I'm not so sure about that prediction. What I'm quite sure of is that, whichever way the court rules, Anthony Kennedy will write a majority opinion that makes him feel very important and makes everyone else feel very confused.

[shally]

Originally Posted by justinskins

My bold prediction is a that they will uphold the law as written, 6-3. Ultimately, the argument about the mandate seems like quibbling to me. The federal government already forces individuals to buy disability insurance and insurance against the hardships of old age. It's called social security and medicare. The only difference in this case is that the insurance is administered by private companies, not by the government. How Obamacare concerns interstate commerce any less than social security is quite beyond me. Overturning this law would be a major departure. Maybe the Roberts court is ready to go there, but I'm not going to bank on it.

I'll admit I'm not so sure about that prediction. What I'm quite sure of is that, whichever way the court rules, Anthony Kennedy will write a majority opinion that makes him feel very important and makes everyone else feel very confused.

you could be right, if they feel that it is good law, and good for the country

still, i dont think that it is EITHER and the Supremes will come down with a narrow ruling striking down some part of it, and sending it back for Congress to re-work parts of it..

[Keino]

Originally Posted by shally

you could be right, if they feel that it is good law, and good for the country

still, i dont think that it is EITHER and the Supremes will come down with a narrow ruling striking down some part of it, and sending it back for Congress to re-work parts of it..

I am not sure this fits the doctrine of judicial review. They are limited to the Constitutionality questions.

[shally]

Originally Posted by Keino

I am not sure this fits the doctrine of judicial review. They are limited to the Constitutionality questions.

might be technically true, but i think the Supremes usually have a sense of history on important matters like this

[RedskinsDave]

Originally Posted by justinskins

My bold prediction is a that they will uphold the law as written, 6-3. Ultimately, the argument about the mandate seems like quibbling to me. The federal government already forces individuals to buy disability insurance and insurance against the hardships of old age. It's called social security and medicare. The only difference in this case is that the insurance is administered by private companies, not by the government. How Obamacare concerns interstate commerce any less than social security is quite beyond me. Overturning this law would be a major departure. Maybe the Roberts court is ready to go there, but I'm not going to bank on it.

I'll admit I'm not so sure about that prediction. What I'm quite sure of is that, whichever way the court rules, Anthony Kennedy will write a majority opinion that makes him feel very important and makes everyone else feel very confused.

That only difference is a HUGE difference. It is the argument I made back when this thing was forced through the back door. Telling people they have to purchase something, anything, is illegal. If they hold it up, I will very curious to see how they justify it as not to open the door for even more government mandates.

Everyone has to own a bike and you have to buy a bike from these companies. If you do not buy a bike, we will fine you on your taxes. Don't worry though, the people who already own a bike will pay more to make up for all the people who can't afford bikes. Hell, we might even demand some parts of the bike be free if certain businesses don't agree with providing those parts. All hail the BIKE KING.

[Ibleedburgundy]

Originally Posted by Keino

I am not sure this fits the doctrine of judicial review. They are limited to the Constitutionality questions.

Oddly enough, Scalia's argument for why this ruling is different from when he classified federal marijuana laws to be constitutional under the commerce clause may depend on whether Scalia himself thinks the Patient Protection and Affordable Care Act is necessary, proper, and essential to the broader regulatory scheme.

RB: One of the moments that was absolutely key was Justice Scalia dealing with his previous opinion in the Raich case. His opinion in the Raich case, which focused on something being essential in the broader regulatory scheme, was all about something being necessary in the Necessary and Proper Clause, not with something being proper. But in other cases, he said, the Supreme Court has held that a certain exercise of federal power might be necessary but might not be proper. Then the solicitor general pushed back and said those cases involved state commandeering. And Scalia said, well, those cases were state commandeering, but that’s not the only violation that can be improper. And he pointed to the 10th Amendment, which doesn’t just protect the states, but also protects the people.

http://www.washingtonpost.com/blogs/...NpeS_blog.html

[justinskins]

Originally Posted by RedskinsDave

That only difference is a HUGE difference. It is the argument I made back when this thing was forced through the back door. Telling people they have to purchase something, anything, is illegal. If they hold it up, I will very curious to see how they justify it as not to open the door for even more government mandates.

Everyone has to own a bike and you have to buy a bike from these companies. If you do not buy a bike, we will fine you on your taxes. Don't worry though, the people who already own a bike will pay more to make up for all the people who can't afford bikes. Hell, we might even demand some parts of the bike be free if certain businesses don't agree with providing those parts. All hail the BIKE KING.

So, it is unconstitutional for Congress to require someone to buy a bike. But it is OK if the federal government takes the money to buy a bike from your salary, then gives you the bike for free? Because that seems to be what is being argued.

Also, this is purely an issue of federal power. There doesn't seem to be much dispute that state governments can make you buy something.