Court rRuling on Obamacare

[flabbybody]

Sounds like from the comments of Scalia's forthcoming book that we can rule out him siding with the 4 liberal justices. It's really down to Kennedy, although some analysts still rate Roberts as an extreme longshot on a vote to uphold.

Personally, I think the ACA is a kludge of a law. I think it's better than nothing with a provision preventing denial of coverage based on pre-existing conditions. But I'm guessing this gets struck down and things will have to get a lot worse before critical mass is reached and real health care reform is passed. My favorite remedy would be a movement to demand that Congress strip themselves of health care coverage. Could work too if voters had the 'nads to vote out the incumbent and for the guy/girl who is willing to forgo coverage until universal coverage is passed.

It's certainly far from perfect, but it's all we got. Ironically the idea of forcing young healthy adults to purchase health coverage was the conservative Republican idea in order to bring on board the insurance industry. Insurers crave low risk customers because actuarially they are the most profitable. Obama made it the centerpiece of the law because he knew Canadian style single payer was dead on arrival. So the pragmatic compromise is the very issue the Court may rule against.

[broncofan]

To my knowledge there has never been an opinion issued respecting the difference between positive and negative regulation under the Commerce Clause. The article Prospero linked is a very good primer on the subject. I didn't read all of it but Scalia, though an originalist, has in the past already extended the Commerce Clause beyond what Clarence Thomas, for instance, would be willing to do.

Anyhow, the other Commerce Clause opinions have quibbled more over the definition of "interstate" in interpreting the commerce clause. Does it have to involve an interstate operation that federal law is restricting? Past decisions have said no; if it is an entirely instate operation but the regulation of the business activity in question would have a substantial effect on interstate commerce, the federal government can pass laws regulating it under its commerce clause power.

If the Commerce Clause were read in the way Clarence Thomas thinks it should be read, there would be very little the federal government could legislate under it. For seventy or so years, the clause has been interpreted in such a way that the federal government is given fairly broad power to regulate commercial activity where the states are unable to come up with a workable solution because of collective action problems and race to the bottom mentality. In fact, our health insurance quagmire seems like the exact reason it makes sense for the federal government to have such power.

[broncofan]

In other opinions, Scalia has respected precedent regarding Commerce Clause jurisprudence. In order to justify departing from that precedent he has to find a basis for distinguishing this case from other cases such as Wickard v. Filburn that were litigated under the Commerce Clause. The article Prospero linked makes the great point that forcing someone to buy does not justify a slippery slope argument and thus the invocation of a limiting principle any more than a restrictive regulation does. There is nothing inherently more tyrannical or threatening about forcing people to engage in activity than preventing them from so doing. One could hypothetically be regulated out of existence by being prevented from eating broccoli (and other foods) just as it would be burdensome to force them to eat this vegetable, the stuff that cruciferous nightmares are made of.

The check on regulation is the due process clause, and there's no reason it could not be applied to anything forcing an individual to purchase something if it was excessively burdensome. One can read the article linked by OMK and the one linked by Prospero to see the difference between empty rhetoric on the one hand and substantive analysis on the other. I cannot be sure that Kennedy will decide in the way that Dworkin expects, but his reasoning is very convincing.

[broncofan]

It's certainly far from perfect, but it's all we got. Ironically the idea of forcing young healthy adults to purchase health coverage was the conservative Republican idea in order to bring on board the insurance industry. Insurers crave low risk customers because actuarially they are the most profitable. Obama made it the centerpiece of the law because he knew Canadian style single payer was dead on arrival. So the pragmatic compromise is the very issue the Court may rule against.

This is a good point. I also think the mandate as it's called is necessary to make the whole thing work. Insurance companies would go bankrupt if only those who were at risk got insurance. So, the plan was to make the young and healthy subsidize the old and infirm. The truth is that the young and healthy, if they're lucky, eventually become old and infirm. Also, disability and illness are not doled out based on merit, so it is naive for those fortunate enough to have good health to believe it is the result of their virtue.

[flabbybody]

I would be astounded if the Court ruled against the mandate and let the rest of the law stand. I think most of us think the decision will be all or nothing.
We''ll know soon enough... this Thursday

[broncofan]

I would be astounded if the Court ruled against the mandate and let the rest of the law stand. I think most of us think the decision will be all or nothing.
We''ll know soon enough... this Thursday

I agree. And though I'm guessing, I don't think it would be consistent with congressional intent to let it stand since the bill probably doesn't work as a coherent whole without the mandate. Scalia is very big on the idea of the legislature voting on the text of the bill (not the legislative history or only parts of the bill) and so he would probably not sign off on anything that kept part of the legislation but not the rest. He would argue, quite eloquently as he is a very good writer for (insert pejorative), that what remains in the bill after part is struck down for constitutional reasons has not been voted on and passed.

[robertlouis]

I found this on Facebook. Is what it says true? If it is, it's a scandal.

[Prospero]

Thomas will vote against affordable care. it's a given. It's really all down to one judge who flips to the right more often than not. Don't hold your breath for a good outcome..

[robertlouis]

Thomas will vote against affordable care. it's a given. It's really all down to one judge who flips to the right more often than not. Don't hold your breath for a good outcome..

I realise that. But against such a flagrant conflict of interest? That's shameful.

[Stavros]

I realise that. But against such a flagrant conflict of interest? That's shameful.

The only shame Republicans are aware of is other people's...