Is Obamacare too big to fail?

[gallantwarrior]

No. Its not to big to fail.

Neither were the banks or GM, but the regime still extorted our money to pay them off.

 

[gallantwarrior]

There is a simple solution. Since Pelosi tried to hedge her bets when she made the mandate inseverable, if the mandate is unconstitutional, scrap the whole mess. Then the Justices won't be burdened with trying to legislate health care and Congress will have to drag their tired, disingenuous asses back to the drawing board. Let's try it again, only this time leave out the pork and special interest payoffs.

 

[Greenbeard]

I have heard the same argument but I think it's far more likely that if they feel it's unconstitutional they will scrap the whole thing rather than let it stand anyhow. I mean can you imagine the reaction if they were to say "ok we think it's unconstitutional but we're going to leave it be regardless".

If five of them believe the individual mandate to be unconstitutional, they can do exactly what the Eleventh Circuit did: strike the mandate and leave the rest of the statute intact.

Once you get into throwing people who're receiving treatment out of the high-risk pools, reversing early Medicaid expansions authorized under the ACA, booting college kids out of family plans and revoking care for kids with pre-existing conditions, reinstating annual and lifetime limits, and so on, you get into very gray territory. The message to states that have already signed contracts with IT vendors or provider groups that made structural changes to take advantage of Medicare's shared savings program is what? Tough luck, we're trying to spite Congress? There's also the matter of the Indian Health Service authorizations, the CHIP and community health center appropriations, etc.

They don't have to pick and choose what stays, everything but the offending section should stay. If they feel an absolute need to pick and choose which pieces stay and which go, they don't need to comb through the legislation--the government already argued exactly which pieces it feels should go in conjunction with the mandate, which just happen to be the only ones logically and functionally related to the mandate. The two pages they'd want to strike if they were picking and choosing have been highlighted for them. But there's no particular need for that level of activism, either.

 

[Amelia]

I can't remember where I heard it - whether it was a commentator or a clip from one of the justices - but someone suggested that the justices might not want to upend it because it was just too big. They might think it was already affecting too many people for it to be practical to undo it.

So they might swallow the constitutional question and more or less reward the law's authors for making it so huge and complicated.

I highly doubt it. I have heard the same argument but I think it's far more likely that if they feel it's unconstitutional they will scrap the whole thing rather than let it stand anyhow. I mean can you imagine the reaction if they were to say "ok we think it's unconstitutional but we're going to leave it be regardless". Christ almighty. The SCOTUS has a collective ego remember. It's far more within their personality to say to Congress "you guys really fucked this up so we're going to toss it out to teach you a lesson. Do it right next time" rather than "well it's a mess but we're too lazy to screw with it"

"ok we think it's unconstitutional but we're going to leave it be regardless".

Well, I wouldn't think they would say it in so many words.

But if anyone (Kennedy or Roberts) is on the borderline, maybe thoughts of all the people affected would make them tip toward the idea that yes, perhaps health care is unique enough of a market that ... yada yada yada.

So then that's how they would write up the decision - that the government had made a persuasive case that this was a unique market and that this decision would not be the slippery slope that would lead to a complete nullification of individual and states' rights.

 

[BluePhantom]

I have heard the same argument but I think it's far more likely that if they feel it's unconstitutional they will scrap the whole thing rather than let it stand anyhow. I mean can you imagine the reaction if they were to say "ok we think it's unconstitutional but we're going to leave it be regardless".

If five of them believe the individual mandate to be unconstitutional, they can do exactly what the Eleventh Circuit did: strike the mandate and leave the rest of the statute intact.

They can, yes. I am not so sure they will.

They don't have to pick and choose what stays, everything but the offending section should stay.

What you and I feel should or should not stay is irrelevant. The SCOTUS has a habit of deciding for itself what should or should not happen.

 

[BluePhantom]

But if anyone (Kennedy or Roberts) is on the borderline, maybe thoughts of all the people affected would make them tip toward the idea that yes, perhaps health care is unique enough of a market that ... yada yada yada.

So then that's how they would write up the decision - that the government had make a persuasive case that this was a unique market and that this decision would not be the slippery slope that would lead to a complete nullification of individual and states' rights.

It's certainly possible. They are certain to argue between themselves for a bit through the briefs they will exchange back and forth and certainly someone's mind could get changed. I think the smart money right now though is that the mandate is toast...if you put a gun to my head and said "decide" I would say they will probably toss out the whole thing. But it's all speculation of course.

 

[Greenbeard]

They don't have to pick and choose what stays, everything but the offending section should stay.

What you and I feel should or should not stay is irrelevant. The SCOTUS has a habit of deciding for itself what should or should not happen.

Of course they do. But I'm speaking as a citizen of the United States, not a courtwatcher. If they throw out pieces of the legislation with no logical, policy, of functional relationship to the individual mandate (i.e 99% of the legislation), you're correct that they'll be doing it simply to satisfy a "collective ego" and to "teach Congress a lesson."

Given the gravity of the subject matter, particularly the pieces already in operation, as well as those in various stages of implementation, I'd prefer not to see them play games with this. And frankly, hearing justices talking about filibuster abuse and the political climate as a rationale for an act of judicial activism (i.e. political gridlock means we should assume functions rightly belonging to the legislative branch) with enormous policy import and little justification is disturbing.

 

[BluePhantom]

They don't have to pick and choose what stays, everything but the offending section should stay.

What you and I feel should or should not stay is irrelevant. The SCOTUS has a habit of deciding for itself what should or should not happen.

Of course they do. But I'm speaking as a citizen of the United States, not a courtwatcher. If they throw out pieces of the legislation with no logical, policy, of functional relationship to the individual mandate (i.e 99% of the legislation), you're correct that they'll be doing it simply to satisfy a "collective ego" and to "teach Congress a lesson."

You misunderstand. I said they are more likely to "teach Congress a lesson" rather than let an unconstitutional bill stand. But that is a contrast of extremes. More likely, if they toss the whole thing, it will be because if they only get rid of the mandate and let the rest stand it will, as Scalia pointed out, create a massive debt hole with no ability to get the 60 votes in the Senate needed to fix it.

Given the gravity of the subject matter, particularly the pieces already in operation, as well as those in various stages of implementation, I'd prefer not to see them play games with this. And frankly, hearing justices talking about filibuster abuse and the political climate as a rationale for an act of judicial activism (i.e. political gridlock means we should assume functions rightly belonging to the legislative branch) with enormous policy import and little justification is disturbing.

I completely disagree. Scalia is 100% correct on that point. Congress won't be able to fix or repeal this thing if they send it back gutted but standing. The SCOTUS will have created a bigger mess than Congress did.

 

[C_Clayton_Jones]

Might the justices rule that the ACA should stand, mandate and all, because dismantling it would be too complicated?

No.

And there’s only one justice deciding this: Kennedy, who has clearly indicated the ACA will be struck down in its entirety.

 

[copsnrobbers]

I think back of the first two years Obama was president. He did next to nothing other than work Socialized Heath care over the coals. Dem's had a shot at finally jamming it down our throats and did, even when they new what they had was bad. Don't forget the Scott Brown election.
apx 65% of the citizens do not want it. The additions in the bill aside from health care are radical and I'm sure the justices see them. This whole bill is shit and so are the folks that passed it.
Oww, Dennis Kucinich gets a ride on air Force One! Promises made to six Blue Dogs by executive order that weren't worth the paper they were written on. Corruption at its best.
on and on.

 

[BluePhantom]

Might the justices rule that the ACA should stand, mandate and all, because dismantling it would be too complicated?

No.

And there’s only one justice deciding this: Kennedy, who has clearly indicated the ACA will be struck down in its entirety.

That's my interpretation as well.

 

[gallantwarrior]

"You can please some of the people some of the time, but you cannot please all of the people all of the time."
The way this abortion was written and presented was done so that almost everyone would be able to find something, no matter how small, that would apply to their personal situation. Whether you have a pre-existing condition, or a college student, or are on Medicare/Medicaid, or know someone who has any of the above conditions, or any other less publicized condition, there is a "goodie" in there for you or yours. That's why they said we'd like it better as we knew more. They also told us that we would have to have it passed before we knew what-all was in that mess. For the tiny tidbits they've tossed the public, there are far more liabilities.
I'd like to see the SCOTUS scrap the whole sheebang. Maybe after Novemeber, we'll have a reasonable chance or seeing bipartisan cooperation in solving the problem of affordable healthcare.