The Justice Kennedy Question In The Transcript--When Actually It's About The Money!

Discussion in 'Healthcare/Insurance/Govt Healthcare' started by mascale, Mar 27, 2012.

  1. mascale

    mascale VIP Member

    Feb 22, 2009
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    Solicitor General Verilli is shown, in the Transcript of the Argument of the Government's Affordable Health Care Defense--Day Two--to contend that the Act is intended as an embracing payment methodology in a market which is pre-existing to the Act itself.

    It is not comparable to a government requirement of cell phone ownership: As a means of accessing government emergency services.

    It is not comparable to burial insurance since the lack of burial insurance is not passed on to other people who do purchase burial insurance. The tens of millions of health care uninsured do create the burden of additional costs, since the medical providers raise prices to cover the costs.

    Justice Kennedy wondered if this was not a command to enter into commerce. Scalia would further contend that in fact this was a regulation of the insurance. General Verilli had opened with the government's contention that the Act is about financing health care.

    So then this happens, way into proceedings:

    JUSTICE KENNEDY: But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don't have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that's generally the rule.

    And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.

    GENERAL VERRILLI: I don't think so, Justice Kennedy, because it is predicated on the participation of these individuals in the market for health care services. Now, it happens to be that this is a market in which, aside from the groups that the statute excludes, virtually everybody participates. But it is a regulation of their participation in that market.

    CHIEF JUSTICE ROBERTS: Well, but it's critical how you define the market. If I understand the law, the policies that you're requiring people to purchase involve — must contain provision for maternity and newborn care, pediatric services, and substance use treatment. It seems to me that you cannot say that everybody is going to need substance use treatment, substance use treatment or pediatric services, and yet that is part of what you require them to purchase.

    GENERAL VERRILLI: Well, it's part of what the statute requires the insurers to offer. And I think the reason is because it's trying to define minimum essential coverage because the problem -

    CHIEF JUSTICE ROBERTS: But your theory is that there is a market in which everyone participates because everybody might need a certain range of health care services, and yet you're requiring people who are not — never going to need pediatric or maternity services to participate in that market.

    GENERAL VERRILLI: The — with respect to what insurance has to cover, Your Honor, I think Congress is entitled the latitude of making the judgments of what the appropriate scope of coverage is. And the problem here in this market is that for — you may think you're perfectly healthy and you may think that you're not — that you're being forced to subsidize somebody else, but this is not a market in which you can say that there is a immutable class of healthy people who are being forced to subsidize the unhealthy. This is a market in which you may be healthy one day and you may be a very unhealthy participant in that market the next day and that is a fundamental difference, and you're not going to know in which -

    CHIEF JUSTICE ROBERTS: I think you're posing the question I was posing, which is that doesn't apply to a lot of what you're requiring people to purchase: Pediatric services, maternity services. You cannot say that everybody is going to participate in the substance use market and yet you require people to purchase insurance coverage for that.

    GENERAL VERRILLI: Congress has got —Congress is enacting economic regulation here. It has latitude to define essential, the attributes of essential coverage. That doesn't — that doesn't seem to me to implicate the question of whether Congress is engaging in economic regulation and solving an economic problem here, and that is what Congress is doing.

    JUSTICE ALITO: Are you denying this? If you took the group of people who are subject to the mandate and you calculated the amount of health care services this whole group would consume and figured out the cost of an insurance policy to cover the services that group would consume, the cost of that policy would be much, much less than the kind of policy that these people are now going to be required to purchase under the Affordable Care Act?

    GENERAL VERRILLI: Well, while they are young and healthy that would be true. But they are not going to be young and healthy forever. They are going to be on the other side of that actuarial equation at some point. And of course you don't know which among that group is the person who's going to be hit by the bus or get the definitive diagnosis. And that -

    JUSTICE ALITO: The point is — no, you take into account that some people in that group are going to be hit by a bus, some people in that group are going to unexpectedly contract or be diagnosed with a disease that — that is very expensive to treat. But if you take their costs and you calculate that, that's a lot less than the amount that they are going to be required to pay.

    So that you can't just justify this on the basis of their trying to shift their costs off to other people, can you?

    GENERAL VERRILLI: Well, the — the people in that class get benefits, too, Justice Alito. They get the guaranteed-issue benefit that they would not otherwise have, which is an enormously valuable benefit.

    And in terms of the — the subsidy rationale, I — I don't think — I think it's — it would be unusual to say that it's an illegitimate exercise of the commerce power for some people to subsidize others. Telephone rates in this country for a century were set via the exercise of the commerce power in a way in which some people paid rates that were much higher than their costs in order to subsidize -

    JUSTICE SCALIA: Only if you make phone calls.

    GENERAL VERRILLI: Well, right. But — but everybody — to live in the modern world, everybody needs a telephone. And the — the same thing with respect to the — you know, the dairy price supports that — that the Court upheld in Wrightwood Dairy and Rock Royal. You can look at those as disadvantageous contracts, as forced transfers, that — you know, I suppose it's theoretically true that you could raise your kids without milk, but the reality is you've got to go to the store and buy milk. And the commerce power -*as a result of the exercise of the commerce power, you're subsidizing somebody else -

    JUSTICE KAGAN: And this is especially true, isn't it, General -

    GENERAL VERRILLI: — because that's the judgment Congress has made.

    JUSTICE KAGAN: — Verrilli, because in this context, the subsidizers eventually become the subsidized?

    GENERAL VERRILLI: Well, that was the point I was trying to make, Justice Kagan, that you're young and healthy one day, but you don't stay that way. And the — the system works over time. And so I just don't think it's a fair characterization of it. And it does get back to, I think — a problem I think is important to understand -

    The ancient question of Cain, who slew Abel, is at issue in money systems--just like in the insurance question. Currencies are denominated with arithmetic, which is a completely logical system. It's use is government enforced. Individuals essentially become the keepers of one another: Simply and only through their use of modern money.

    So the General Verrili contends that little more than payment is at issue. The "affirmative act" question of Justice Kennedy could be met with the counter that the Affordable Health Care Act is no more compelling an affirmative act than currency use. The insurance becomes the currency of medical transaction.

    The math of mascale is still relatively new. The Schedule M tax refund was taken away by the Republicans in favor of a less regressive Social Security financing plan--without so-stating, or fully creating.

    The government's case is that the Affordable Health Care Act is essentially about a form of "legal tender" in the matter of payments to the medical providers.

    Taken that way, then Justice Kennedy's objection tends to disappear, and the health care providers can get paid, after all: Rather than go blind(?)! There is no obligation to an affirmative act being created. There is financing mechanism being created, in a pre-existing market with scattered forms of payment, in place, already.

    The government's contention is that Congress merely created a newer, and more efficient method of payments providing. There is a liklihood that it could more easily be compared to money-changing, but then: So could a lot of Washington, D. C.

    It probably fits in with the prevailing schemes of things at this time!

    "Crow, James Crow: Shaken, Not Stirred!"
    (So Affordable Health Care Act Not Like Turquoise(?)! Hmmmm!)
    Last edited: Mar 27, 2012

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