Which Justices Will Vote Down ObamaCare? & a Preview of the Arguments to Come.

[Wry Catcher]

I hedged in this thread and said the four most conservative justices would vote to strike it down.

I can’t find anything in Kennedy’s past to suggest anything but a narrow reading of the commerce clause. He's a famous wildcard and both sides think him to be susceptible to vote the way they prefer. However, he usually votes with conservatives on everything economic and regulatory and with liberals on everything social.

Which makes his vote an interesting question. Is "Obamacare" an Economic Issue or a Social Issue?

I voted for only two, Alito and Thomas - the two most ideological members of the court - imo.

 

[Publius1787]

I hedged in this thread and said the four most conservative justices would vote to strike it down.

I can’t find anything in Kennedy’s past to suggest anything but a narrow reading of the commerce clause. He's a famous wildcard and both sides think him to be susceptible to vote the way they prefer. However, he usually votes with conservatives on everything economic and regulatory and with liberals on everything social.

Which makes his vote an interesting question. Is "Obamacare" an Economic Issue or a Social Issue?

By social I meant "Bill of Rights" and by economics I meant how Congress exercises its enumerated powers. Being that both side concede that you have no natural or constitutional right to healthcare, the question rightly falls under the power to regulate commerce or the power to tax with a hint of "Necessary and Proper."

 

[Liability]

Agreed. As a practical matter, there is nothing of note in the Act-- and not a single thing worth preserving -- if the mandate part of it gets tossed.

That's just as well, since the Act is a cluster-fuck of stupid governmental interference.

Gut it, scrap it. Rip it up. Throw it in the incinerator. IF it's deemed important enough, try to craft some sensible legislation to replace it with.

ObamaCare is not sensible.

That’s more of a value judgment up to the discretion of Congress than how the mandate affects the rest of the bill. It’s more complicating than that.

No. When I said as a practical matter, that's what I meant. And later on, you say much the same thing.

You just either don't grasp what I am saying or you have some quibble about how I am saying it.

But it still stands.

AS A PRACTICAL MATTER, without the mandate, the Act will not work.

I am not suggesting that the Court should or could substitute its legislative judgment for Congress' legislative judgment. I am saying that the Act requires significant outlays and none of those costs will be covered without the mandates/penalties.

I have read through that clusterfuck. It is indeed written in legislative gibberish. But there are lots more than just a couple of pages of that gibberish that will necessarily fall if the mandate is tossed out. And how the associated costs of ANY of it get paid for without the funding provisions is -- at best -- a mystery.

 

[Ariux]

Who is the idiot who voted that the Jews on the Supreme Court will vote against this unprecedented and unconstitutional federal power grab?

 

[Publius1787]

Agreed. As a practical matter, there is nothing of note in the Act-- and not a single thing worth preserving -- if the mandate part of it gets tossed.

That's just as well, since the Act is a cluster-fuck of stupid governmental interference.

Gut it, scrap it. Rip it up. Throw it in the incinerator. IF it's deemed important enough, try to craft some sensible legislation to replace it with.

ObamaCare is not sensible.

That’s more of a value judgment up to the discretion of Congress than how the mandate affects the rest of the bill. It’s more complicating than that.

No. When I said as a practical matter, that's what I meant. And later on, you say much the same thing.

You just either don't grasp what I am saying or you have some quibble about how I am saying it.

But it still stands.

AS A PRACTICAL MATTER, without the mandate, the Act will not work.

I am not suggesting that the Court should or could substitute its legislative judgment for Congress' legislative judgment. I am saying that the Act requires significant outlays and none of those costs will be covered without the mandates/penalties.

I have read through that clusterfuck. It is indeed written in legislative gibberish. But there are lots more than just a couple of pages of that gibberish that will necessarily fall if the mandate is tossed out. And how the associated costs of ANY of it get paid for without the funding provisions is -- at best -- a mystery.

My apologies then. Generally I call everything a value judgment that leaves out the “why.” However, as you alluded to, anyone who thinks that the cost of everything in this bill without the individual mandate will do anything but skyrocket in its absence is more concerned with the political implications of the 2012 election than they are practicality and reason. The entire bill and the cost assumed by everything in it depend on the individual mandate shifting the cost back to those who don’t pay for insurance. It is just plain nutty to assume that the mandate is severable from all of the intended ends of the bill once that means is gone.

 

[Polk]

Besides that fact that we can't afford this clusterfuck....The best argument I have heard involves "Contract law". If I hold a gun to your head and force you to sign a contract - is that contract binding? Of course not! No court in the world would see that contract as valid (well, maybe in Cuba or North Korea they would). A contract is only binding if there is "mutual assent". There is no "mutual assent" in the Obamacare mandate. The government is forcing me to enter into a contract to purchase something regardless of whether I want to or not. I find that idea very troubling.

Using that standard, all state laws requiring the purchase of car insurance are also unconstitutional.

 

[Greenbeard]

The cost of ALL of those stated programs are affected by whether the individual mandate is present or not and are scored with these assumptions in mind. This is not arguable.

The costs of CHIP have nothing to do with the individual mandate. The myriad reforms to Medicaid, Medicare, and public health/prevention that make up the bulk of the legislation have nothing to do with the individual mandate. The individual mandate pertains only to the costs of private insurance in a private market devoid of medical underwriting. Even so, if you look at the RAND analysis out last month on the impact of removing the individual mandate, they project that federal spending in the exchanges would increase only a very small amount.

Of course, if the Court is concerned about that increase, it can simply jettison the two pages of the legislation that eliminate medical underwriting.

The entire bill and the cost assumed by everything in it depend on the individual mandate shifting the cost back to those who don’t pay for insurance. It is just plain nutty to assume that the mandate is severable from all of the intended ends of the bill once that means is gone.

Again, the conception you (and many others) seem to have of what comprises "the entire bill" is actually contained in roughly two pages of it. Adverse selection in the private insurance market is deterred by medical underwriting. The ACA spends two pages eliminating medical underwriting and inserts an individual mandate to take over the function of deterring adverse selection. Those provisions are very clearly severable from the rest of the ACA, not just because of the existing precedent contained in judicial decisions and Congress's legislative drafting manuals, but because the rest of the Act functions fine without them.

 

[Publius1787]

Besides that fact that we can't afford this clusterfuck....The best argument I have heard involves "Contract law". If I hold a gun to your head and force you to sign a contract - is that contract binding? Of course not! No court in the world would see that contract as valid (well, maybe in Cuba or North Korea they would). A contract is only binding if there is "mutual assent". There is no "mutual assent" in the Obamacare mandate. The government is forcing me to enter into a contract to purchase something regardless of whether I want to or not. I find that idea very troubling.

Using that standard, all state laws requiring the purchase of car insurance are also unconstitutional.

Not saying that I subscribe to his argument, however, if it’s the government’s road it’s the government’s rules. I don’t believe I need insurance to drive on private property. Nor do I need insurance to ride a bus, walk, or ride a bike. However, as a condition of choosing to drive on a public road with public considerations in mind, my state, not the federal government, has chosen to mandate that I buy car insurance. They did not mandate they I buy car insurance as a condition of living. They are not forcing me to enter in to the car market so they can regulate me in to buying car insurance, so that they can control the coast shift for those with preexisting accidents.

 

[Zander]

Besides that fact that we can't afford this clusterfuck....The best argument I have heard involves "Contract law". If I hold a gun to your head and force you to sign a contract - is that contract binding? Of course not! No court in the world would see that contract as valid (well, maybe in Cuba or North Korea they would). A contract is only binding if there is "mutual assent". There is no "mutual assent" in the Obamacare mandate. The government is forcing me to enter into a contract to purchase something regardless of whether I want to or not. I find that idea very troubling.

Using that standard, all state laws requiring the purchase of car insurance are also unconstitutional.

Nope. You are confusing individual States with the Federal government.

 

[Liability]

Besides that fact that we can't afford this clusterfuck....The best argument I have heard involves "Contract law". If I hold a gun to your head and force you to sign a contract - is that contract binding? Of course not! No court in the world would see that contract as valid (well, maybe in Cuba or North Korea they would). A contract is only binding if there is "mutual assent". There is no "mutual assent" in the Obamacare mandate. The government is forcing me to enter into a contract to purchase something regardless of whether I want to or not. I find that idea very troubling.

Using that standard, all state laws requiring the purchase of car insurance are also unconstitutional.

Nope. You are confusing individual States with the Federal government.

That and worse. States legitimately issue driver's licenses and require car registrations. A driver's license is not a "right." It is a privilege and it MAY properly be conditioned.

One of the conditions is that a State MAY properly say "Thou may not drive without insurance."

What "thing" would the Federal Government be conditioning the duty to have insurance coverage on?

Living itself?

 

[Publius1787]

The cost of ALL of those stated programs are affected by whether the individual mandate is present or not and are scored with these assumptions in mind. This is not arguable.

The costs of CHIP have nothing to do with the individual mandate. The myriad reforms to Medicaid, Medicare, and public health/prevention that make up the bulk of the legislation have nothing to do with the individual mandate. The individual mandate pertains only to the costs of private insurance in a private market devoid of medical underwriting. Even so, if you look at the RAND analysis out last month on the impact of removing the individual mandate, they project that federal spending in the exchanges would increase only a very small amount.

Of course, if the Court is concerned about that increase, it can simply jettison the two pages of the legislation that eliminate medical underwriting.

The entire bill and the cost assumed by everything in it depend on the individual mandate shifting the cost back to those who don’t pay for insurance. It is just plain nutty to assume that the mandate is severable from all of the intended ends of the bill once that means is gone.

Again, the conception you (and many others) seem to have of what comprises "the entire bill" is actually contained in roughly two pages of it. Adverse selection in the private insurance market is deterred by medical underwriting. The ACA spends two pages eliminating medical underwriting and inserts an individual mandate to take over the function of deterring adverse selection. Those provisions are very clearly severable from the rest of the ACA, not just because of the existing precedent contained in judicial decisions and Congress's legislative drafting manuals, but because the rest of the Act functions fine without them.

So you are of the opinion that the individual mandate accomplishes little in lowering the cost by forcing everyone to have health insurance, and thereby, not forcing the responsible consumer to pick up the slack for medicines and services for the uninsured. My how the liberal argument changes to further defy the economics of cost shifting, supply and demand, scarcity, and dare I say, common sense. The entire premise of your above statement solely relies on the assumption that the “health care crisis” in the United States either does not exist or cannot be solved by the individual mandate. So no mandate is necessary to lower cost to all consumers? In other words, the prices of medicine and services are unaffected by the individual mandate which is the exact opposite of what Obama and the Democrats said it would do.

So I predicted it correctly. If the individual mandate is stricken out, no matter what the true, actual, or past economic assumptions are , Democrats are going to turn on all previous assumptions to justify keeping as much of it as possible no matter what the obviously adverse outcome is. In any case, so as long as there is a drug that someone does not pay for, the cost will most certainly be shifted to those who do pay for it. And that raises the price of everything and is not in keeping with the assumptions of the effect of Obama care nor is it in keeping with the assumptions of all healthcare costs involved. To include the costs of all services rendered in the bill. That’s IF you take the Administration at their original assumptions.

 

[Greenbeard]

So you are of the opinion that the individual mandate accomplishes little in lowering the cost by forcing everyone to have health insurance, and thereby, not forcing the responsible consumer to pick up the slack for medicines and services for the uninsured.

To repeat, verbatim, what I just wrote: The individual mandate pertains only to the costs of private insurance in a private market devoid of medical underwriting. So no, I'm not saying it accomplishes little. I'm saying it has nothing to do with the rest of the legislation that doesn't pertain to the private insurance market.

In other words, the prices of medicine and services are unaffected by the individual mandate which is the exact opposite of what Obama and the Democrats said it would do.

That's not the argument I'm making here. You're misunderstanding something somewhere.

 

[Publius1787]

So you are of the opinion that the individual mandate accomplishes little in lowering the cost by forcing everyone to have health insurance, and thereby, not forcing the responsible consumer to pick up the slack for medicines and services for the uninsured.

To repeat, verbatim, what I just wrote: The individual mandate pertains only to the costs of private insurance in a private market devoid of medical underwriting. So no, I'm not saying it accomplishes little. I'm saying it has nothing to do with the rest of the legislation that doesn't pertain to the private insurance market.

In other words, the prices of medicine and services are unaffected by the individual mandate which is the exact opposite of what Obama and the Democrats said it would do.

That's not the argument I'm making here. You're misunderstanding something somewhere.

To lower the cost of insurance so everyone can afford it right? And if the individual mandate is stricken can everyone still afford it? Is the mandate going to lower the price of insurance and increase access if it is not in the bill? And if the same people are left out of the insurance market as they were before then aren't they still going to increase the price of medicine and services as they did before? Or if they struck out ONLY the mandate, without striking out the provision that insurers cannot deny those with preexisting conditions then they wouldn’t buy insurance until they needed to see a doctor, or, insurance costs would skyrocket which would be 20 times worse! You see, you’re only thinking at stage one. I only require that you make it to stage two or three. Of course, there are many more stages in this process but the further you go the more stupid this law becomes and the more expensive it becomes. Especially without the individual mandate! So all medicine is affected and by the assumptions of savings on those goods and services as graded in the bill with the individual mandate, you cannot conclude anything other than medicine and medical services will skyrocket past Congressional intentions and thereby forcing the original funds for these programs to run dry before fiscal year end. Then Democrats are going to accuse Republicans of preventing funding of peoples healthcare when the money runs out and we can’t afford this leftover boondoggle. In any case, the lack of the individual mandate increases the presumed cost of everything else.

 

[Greenbeard]

To lower the cost of insurance so everyone can afford it right? And if the individual mandate is stricken can everyone still afford it?

You're mixing up a number of concepts here: cost control, affordability, and risk selection.

The "affordability" component of the law refers to the limitations on the percentage of a person or family's income that will go toward health insurance premiums (unless they wish to spend more). That's achieved in the exchanges for people under 400% FPL via the refundable tax credits. Outside the exchanges, it generally just means that if your premiums will cost more than a given percentage of your income, you're exempt from the mandate and can buy one of the catastrophic plans available to "young invincibles" (i.e. people under 30), regardless of your age. Exchange premiums will be higher in the absence of the mandate (and enrollment lower), but that doesn't change the affordability standards. Your premium contribution is still pegged to your income.

The law has a number of cost controls but the ones that relate to the private insurance market reforms are: 1) the organizing of the individual market into exchanges, and 2) the structure of exchange subsidies, which are competitively bid by tying them to the 2nd cheapest silver plan. Neither one of those is affected by removing the mandate.

As I've already pointed out, the individual mandate exists solely to manage risk. Right now that's generally done via underwriting, but underwriting is largely eliminated by that infamous 2 pages of the ACA. Without the mandate, exchange premiums will be higher because higher risks will be more likely to enroll than lower risks. The purpose of the mandate isn't to lower premiums, it's to avoid or mitigate that rise in premiums.

As I've said probably a half dozen times now, the individual mandate's reach doesn't extend beyond the guaranteed issue/community rating rules in 2 pages of the legislation. If you were to eliminate the mandate, there's no justification for eliminating anything in the legislation beyond those 2 pages.

 

[Publius1787]

To lower the cost of insurance so everyone can afford it right? And if the individual mandate is stricken can everyone still afford it?

You're mixing up a number of concepts here: cost control, affordability, and risk selection.

The "affordability" component of the law refers to the limitations on the percentage of a person or family's income that will go toward health insurance premiums (unless they wish to spend more). That's achieved in the exchanges for people under 400% FPL via the refundable tax credits. Outside the exchanges, it generally just means that if your premiums will cost more than a given percentage of your income, you're exempt from the mandate and can buy one of the catastrophic plans available to "young invincibles" (i.e. people under 30), regardless of your age. Exchange premiums will be higher in the absence of the mandate (and enrollment lower), but that doesn't change the affordability standards. Your premium contribution is still pegged to your income.

The law has a number of cost controls but the ones that relate to the private insurance market reforms are: 1) the organizing of the individual market into exchanges, and 2) the structure of exchange subsidies, which are competitively bid by tying them to the 2nd cheapest silver plan. Neither one of those is affected by removing the mandate.

As I've already pointed out, the individual mandate exists solely to manage risk. Right now that's generally done via underwriting, but underwriting is largely eliminated by that infamous 2 pages of the ACA. Without the mandate, exchange premiums will be higher because higher risks will be more likely to enroll than lower risks. The purpose of the mandate isn't to lower premiums, it's to avoid or mitigate that rise in premiums.

As I've said probably a half dozen times now, the individual mandate's reach doesn't extend beyond the guaranteed issue/community rating rules in 2 pages of the legislation. If you were to eliminate the mandate, there's no justification for eliminating anything in the legislation beyond those 2 pages.

My reply remains the same.