Two Years On: Obamacare

This ... time 1,000.

It's not that hard to understand.

 

It's not a personal thing with Toobin, who is generally likable on TV.

It's a structural problem with TV cable "news". Toobin's just doing his job.

 

They're the only ones actually listening to arguments and then deciding. The four wingnuts went in already bought and paid-for.

 

After that, mandated law that everyone who wants to undergo a certain medical procedure also has to undergo a second medical procedure.

Oh, wait ....

 

That's not what the Constitution was designed to permit, not what has been historically understood, and is not what the Court has said in any case.

The federal government is a government of enumerated powers. What you proposed would render meaningless the Ninth and Tenth Amendments.

 

Wickard is not on point. Wickard's language about compelling people into the market was dictum. Filburn was already engaged in commerce in the market — he was growing the wheat and feeding it to his own livestock. Just like Raich was growing the marijuana and using it herself. Here, there is regulation *before* anyone is engaged in commerce in the relevant market.

Again, Justice Sotomayor made the arguments for the government, and they are strong. But Wickard and Raich are not controlling. All language otherwise is dicta because the facts in those cases didn't present themselves.

 

Well, you're gonna get plenty of people here arguing with you about growing wheat and feeding it to your horse being an act of commerce, lemme tell you.

What case do you think is on point?

 

None. I know that people will argue Wickard and Raich, but that's how you can connect the two: regulation of the active "production, distribution, [or] consumption of commodities." (Page 26 of the Raich slip opinion.)

 

Good thing the SC didn't do that in Brown vs. BOE ... would have been so much easier if they'd stuck with settled law (e.g., Plessy vs. Ferguson)

 

I'm sure you'll note above, where I said clearly, even if there were no case law, they should uphold.

 

Zeke, just so you know my point here has been to argue against the idea that it's a slam dunk. I think this is a novel and unique issue.

I also don't think that the outcome of this case will have any long-lasting effects.

Individual Mandate Scenarios
1. Upheld — Kennedy or Roberts will write an incredibly narrow opinion, saying that this applies to this and only this situation (like Bush v. Gore). It carries essentially no precedential weight. Congress can do it here, but elsewhere is unclear. It's unlikely that Congress would use the power anywhere else — at least in the near future.

2. Strikes the Mandate — Kennedy or Roberts writes an opinion saying that Congress cannot compel people into a market — which only would happen in this exact circumstance. It doesn't put any meaningful limits on Congress otherwise because Congress wouldn't use this power in any other way.

 

Right, I get that.

To me, and I understand the SG didn't necessarily go this way, the comparison with Filburn is strong. The act of growing wheat for personal use kept him "out" of the market for wheat, negating Congress' powers in regulating the market. If anything, insurance is an even better market for that argument, because you really are priced in whether you buy it or not, whereas someone not growing wheat at all truly isn't in the wheat market.

I do agree that Sotomayor laid out strong arguments.

On a political level, I will hate to have the decision be like Bush v. Gore. Narrowly tailored enough so that it has no practical application further? Absolutely. Just say insurance is a unique market. That's why I thought Alito's question on burial insurance was best. That cut to the heart of the matter. Now, I'd answer him that the government COULD regulate that market, and it might even be proper to, but given the relative costs, it's not necessary. That might be inviting Scalia to smack me, but I figure he's gonna do that for sport, anyway.

But a 5-4 decision with some sort of Bush v. Gore appendage about it not setting a precedent is gonna be an absolute blow to our ability to govern ourselves -- which ever way it would go.