Two Years On: Obamacare

There may be some individual liberty concerns with a single-payer plan.

Every Constitutional analysis for federal law goes this way: 1. Does Congress have the power? 2. Are there independent constitutional limits that would prohibit Congress from doing this?

The debate in the Supreme Court today was all about the first question, not the second.

 

I did read it, and I still think that Kennedy is asking for an argument in the alternative. I was trying to differentiate that reading from what you said:

"He stated flatly that Congress had imposed an 'affirmative duty' to act to go into commerce with a private entity, and that it is 'unprecedented.'"

Both "affirmative duty" and "unprecedented" were preceded with "assume." I don't think Kennedy "said flatly" that this is actually unprecedented or an affirmative duty. He asked for a justification IF the Court decides this meets those two descriptions.

I'm only pointing this out because I can see a way that Kennedy upholds the law as being within precedent (Wickard, Raich, etc.).

 

Bill of Rights and individual liberty issues. Freedom of Speech, religion, association, press, etc. concerns. Due Process. Fundamental right to teach your children as you like, right to be free to purchase contraceptives/abortion in the early stages of pregnancy/reject medical care, etc.

EDIT: As an example: The federal Gun-Free Zones Act failed Question 1. Congress didn't have the power to enact the law because it wasn't regulating commerce, and the cumulative effects of violence in schools was not seen as being necessary to the regulation of the national economy. However, it would have passed Question 2. It didn't threaten any independent limitation because localities could have enacted the law. Things that fail Question 2 are illegal both for the federal government and for the states.*

Meanwhile, the federal government certainly had the power to enact McCain-Feingold. It was regulating federal elections, and the donations could be seen as part of the economy. Thus, Congress had the power to enact the regulations. Question 1 was satisfied. However, the independent limits of the First Amendment prevented Congress from enacting all of the provisions in the campaign reform legislation. So it failed Question 2.


*This assumes that the limit in the Bill of Rights has been Incorporated to apply to the states. Obviously, this is not the case for all rights, but it's generally true.

 

I see where you're coming from now Rick. In that case, to me single payer is the way to go. Of course that would never fly with the Republicans and their insurance company executive pals.

 

Cool.

It's not that I'm opposed to the idea of the government stepping into the health-care market and regulating the living hell out of it.

I just think this specific bill was Obama's attempt to score political points by being able to prove he could pass a massive health-care bill.

So he started out with Newt Gingrich's plan, which he thought he could get bipartisan support for. Then he just made it worse and worse trying to get more conservative support, and the final result is something completely unpalatable, not because of what it intends to do, but because of all the unintended side effects.

 

I'm speaking hypothetically. However, we can talk not just about single-payer but also about the ACA. The Supreme Court almost certainly will not address issues that haven't been briefed. But there could be strong as-applied challenges once the coverage minimums are enacted under the First Amendment, the RFRA, etc.

Now, let's assume that the government wins this case this week. Commerce Clause applies, and Congress can force you into the market. Troubles aren't yet over. If the Dept. of HHS forces you to buy a healthcare plan under their accreditation and then refuses to accredit plans unless they include morning-after pill coverage, for example, someone could challenge that requirement. The government would be literally (even though indirectly) forcing you to buy morning-after pill insurance. That's probably going to violate the First Amendment, and almost certainly would violate the Religious Freedom Restoration Act.

 

Poor Mr Verrilli sounded like a guy in a row boat without paddles. His head must be spinning tonight.

 

When I review Justice Scalia's line of questioning, it seems likely that he'll vote against the health care plan.

When I review Justice Ginsburg's line of questioning, it seems likely that she will vote to uphold the health care plan.

But, when I review Justice Thomas' line of questioning, it seems likely that he won't vote.

 

Many have called on Thomas to not vote as his wife is a lobbyist who has worked against ACA with a Tea Party group.

 

They hedged a little.

It wouldn't shock me to see a Scalia concurrence to a decision to uphold that basically reads... It's a tax.

Wouldn't surprise me to see a mealy-mouthed Roberts concurrence, either.

Lot of variables.

Regarding Thomas, he doesn't ask questions in oral arguments.

Which should be a reminder to their importance.

 

Some of the reporting I've seen on today's questioning is disappointing.

Isn't it a justice's job (Clarence "Mute" Thomas excepted) to ask pointed questions about the case in front of them? No matter which way they intend to rule on it?

Given that, to see several stories surmising/guessing on how SCOTUS will rule one way or another based solely on the questioning seems pretty irresponsible.

To extrapolate a possible decision based on the justice's questions is an extrapolation too far, no matter which way they ultimately rule on it.