T Nation

SCOTUS to Take on Health Reform


Well, finally it's here. The ultimate moment of truth, the Health Care law is before the Supreme Court. I, of course, detest most of this law and it's looming threat has already driven up my premiums, so I am looking forward to this getting struck down. I don't think the whole thing is bad, but the good does not out weigh the bad IMO.

There are 4 possible outcomes:
1. The court rules the whole thing constitutional.
2. The court strikes parts of the law.
3. The court strikes all of the law.
4. The court strikes parts of the law that are so deeply woven into the law that the whole thing then collapses.

I think #2 is the most likely scenario. I don't see anyway mandates are going to stand up against the Constitution. I sure as shit don't want option 1. So what do yall think? What's going to happen here?


Here is a quick guide:


Bolt is more versed on this; but my understanding is that the SCOTUS is going to be looking at a very narrow portion of the PPAA; the constitutionality of mandating that everyone be insured in some way.

It is also my understanding that without the mandates (a major "pillar" or foundation of the PPAA)...the whole Act would begin to lose it's viability.

The outcome should be very interesting.



Reports coming out are saying that there appears to be skepticism even among the liberal justices about the justification that it is a tax. Justice Ginsburg is quoted as saying "this cannot be a revenue raising measure, because if it is successful, there won't be any revenue raised."

This will be very interesting.


That's right, the review is over the individual mandate, but obivously their decision has ripple effects throughout the law. Appellate courts are mixed on whether the striking down of the indiviudal mandate voids the whole law (apparently there is no severability clause in the legislation), but that is up for grabs. I'd have a hard time think SCOTUS would recognize that and strike down the whole law in the event they found the mandate unconstitutional.


So your thinking option 4?


That's a great link Gambit, thanks.... Very fair non-partisan look. I recommend it for which ever side of the argument you land on.


I don't think they will strike the law, but I cannot conceive how the mandate is constitutional. The constitution is innately a restrictive force on government, not a coercive force on the populous.


That's right, Pat...probably 4...but I'm still really studying the whole issue.

(Gambit. Thanks. I'll have to read the whole article after work).



That's right, Pat...probably 4...but I'm still really studying the whole issue.

(Gambit. Thanks. I'll have to read the whole article after work).



It's a tough argument - one excellent argument being advanced is that one of the hallmarks of American jurisprudence (and our English common law) is that contracts must be entered into without coercion. If you enter into a contract under duress without free assent, it is void. Yet the mandate forces people who otherwise do not want to enter into such a contract under pain of penalty. And, the Commerce Clause has never been understood to endorse such a power - to use federal law to override that concept.

In any event, one reason I am skeptical of SCOTUS striking it down is that even if it is unconstitutional, the judiciary is often very reluctant to police these boundaries of policy. Congress and the President are also supposed to decide constitutional questions, and the judiciary often punts that responsibiilty to these branches which, as is often forgotten, are co-equal to, not subordinate to the judiciary.

Not all questions of constitutionality can be decided bu a judiciary (example: if Congress ever decided to grant titles of nobility to anyone, despite the obvious constitutional provision to the contrary, you couldn't ask a court to enjoin the granting of the titles). And I bet SCOTUS says "unconstitutional? Maybe, but let our co-branches decide that."


Yeah, but it happened several times under the reign of FDR though.


What happens to Barry if the law is struck down ?

Does it affect his 2012 reelection ?


But a number of those were bad decisions that no one wants to see emulated.


I wish, but I doubt it. I think it would actually be a boon for him. A huge propaganda tool. "Look they are taking your right to health care away. Vote for me to get it back." Mix this with a weak republican pool, and super friendly media, and a little dash of "It's still Bush's fault" and a huge dash of, "I got Bin Laden"....


Thanks for the post. I've heard a lot of commentators on the left cite Gonzalez v Raich . Even the link above mentions it. Do you (or does anyone) know how that case affects this one?


Gonzalez v. Raich upheld the federal government's ability to regulate individual action, in this case growing personal marijuana. This pretty much continued from Wickard v. Filburn, where the court held the federal government could regulate individual farmers growing personal crops, because in the aggregate it affects interstate commerce.

Those against the healthcare bill will point out the distinction between forcing someone to perform an action (purchase healthcare) and regulating commerce (ie growing crops/marijuana). Those for the healthcare bill will cite those cases as standing for the preposition that just about anything "commercial" falls under the commerce clause, and the ~2 trillion/year spent on healthcare in the US is more than commercial enough to invoke the commerce clause.

I personally think all of the above are unconstitutional, why bother putting the word "interstate" in there if it actually means everything no matter how local. That being said, I'd be absolutely shocked if the Supreme Court overturns the individual mandate.


It doesn't affect it. It's a nonsense argument. In the Raich decision someone was producing something - marijuana. They were producing a product(legal or otherwise) and there was a market for that product. Forcing someone who is producing nothing - is doing nothing but being alive - to enter into a private contract is a completely different thing.

Supreme Court decision Ogden v Saunders, 1827:

'Individuals do not derive from government their right to contract(enter into a contract,) but bring that right with them into society. That obligation is not conferred on contracts by positive law but is intrinsic and conferred by the act of the parties. This results in the right which every man retains to aquire property, to dispose of that property according to his own judgement and to pledge himself for a future act. These rights are not given by society. They are brought into society.'


Looks like the Healthcare Law is in trouble...

Justices signal possible trouble for health insurance mandate

Reporting from Washington?
The Supreme Court's conservative justices Tuesday laid into the requirement in the Obama administration's healthcare law that Americans have health insurance, as the court began a much-anticipated second day of arguments on the controversial legislation.

Even before the administration's top lawyer could get three minutes into his defense of the mandate, some justices accused the government of pushing for excessive authority to require Americans to buy anything.

"Are there any limits," asked Justice Anthony Kennedy, one of three conservative justices whose votes are seen as crucial to the fate of the unprecedented insurance mandate.

PHOTOS: Demonstrations outside Supreme Court

Chief Justice John G. Roberts Jr. suggested that the government might require Americans to buy cellphones to be ready for emergencies. And Justice Antonin Scalia asked if the government might require Americans to buy broccoli or automobiles.

"If the government can do this, what else can it ... do?? Scalia asked.

The tough questioning of the administration's lawyer is no sure sign of how the justices will rule when they hand down their decision in the case, Department of Health and Human Services, et al., vs. State of Florida, et al., likely in June.

But Tuesday?s arguments may signal trouble for the mandate, widely seen as a cornerstone of the law's program for achieving universal healthcare coverage for the first time in the nation?s history.

With the court's four liberal justices expected to vote to uphold the sweeping law, the administration will have to win over at least one of the five justices on the court's conservative wing.

Few believe Justices Clarence Thomas or Samuel A. Alito Jr. will support the mandate. That has made Scalia, Kennedy and Roberts the focus of intense speculation for months.

Solicitor General Donald B. Verrilli Jr. tried to argue that the insurance mandate would not open the door to other requirements to buy products because healthcare is unique.

"Virtually everyone in society is in this market,? said Verrilli, who was prodded on by Justice Ruth Bader Ginsburg and other liberal justices. That means that if someone elects not to get health insurance but then gets sick, as everyone will, that person will pass along costs to everyone else, Verrilli explained.

To prevent that, the administration has argued that that Congress can use its authority under the commerce clause of the Constitution to impose the mandate as a means to regulate health insurance.

The Constitution says Congress has the power to "regulate commerce" and to impose taxes to promote the general welfare. The court has in the past upheld federal laws regulating all manner of business -- from agriculture and aviation to who can be served at the corner coffee shop -- and Roberts, Scalia and Kennedy have in other cases supported the government?s broad authority in that area.

But Tuesday, the three -- and Alito -- repeatedly criticized the requirement to buy health insurance as forcing people to enter a market, which they said was a new and troubling use of federal power.

"That changes the relationship of the individual to the federal government," Kennedy said.

The architects of the 2010 Patient Protection and Affordable Care Act included an insurance requirement after years of experience with insurance markets suggested that it is very difficult to guarantee health insurance to everyone, including people with preexisting medical conditions, without a way to induce younger, healthier people to get covered. That offsets the cost of insuring older, sicker ones.

Under the law, most Americans, starting in 2014, will have to get a health insurance plan that meets a basic set of standards or pay a tax penalty that will rise from $95 in 2014 to $695 in 2016. (The penalty for a family will be up to $2,085 in 2016.)

Health policy experts warn that without some incentive to get insurance, people could wait until they got seriously ill and then sign up for coverage, pushing up premiums for everyone.

The mandate was once embraced by both political parties. But more recently, it has been seized on by conservative critics of the healthcare law as an egregious example of government overreach. And it became the crux of lawsuits challenging the healthcare law by 26 states and plaintiffs represented by the conservative National Federation of Independent Business.

Over the last two years, federal courts across the country have issued conflicting rulings on the insurance requirement, though only one appellate court has backed the constitutional challenge to the law. Two high-profile conservative judges have supported the mandate.



Those of us who feel the New Deal was a raw deal agree with the Courts decisions....