Supreme Court Bound! Health Care Reform Law Unconstitutional

[Avatar4321]

His general attitude is dangerous to all governments that value secrets over transparency. Their willingness to persecute him says more about them than anything he did.

Maybe we need more open and honest governments then.

 

[Trajan]

It's a penalty! No, it's a tax! It's a penalty! No, it's a tax!

Wait a second you two, ObamaCare is a penalty AND a tax!

The Obama Administration is now pushing for Severability so that if the individual mandate is thrown out, the rest of ObamaCare can go forward.

Of course, the individual mandate was a key part of cooking the CBO score, but they aren't worried about paying for the program now that the law has been signed.

hey what the heck?I mean they have already started submarining the 'bill' and its precepts by granting what, 3,000 waivers ? without the mandate this is dead, period, its just a matter of burying it.

 

[goldcatt]

There are certain secrets any government has to value above transparency, particularly where relations with other governments are concerned.

I'm a big fan of the First, but it's obvious even to me that when we assure another nation that our communications will be confidential, we have a duty to honor that commitment. We do not have a right to public access to absolutely everything for good reason.

There's a difference between having a right to it and being able to prosecute an outlet once the information is leaked.

You don't have a "right" to the information, which is why you couldn't get it through FOIA or other means. But if it gets leaked out by someone who has access to it, the 1st does shield the media outlet that gets it.

Exactly. So long as the media outlet or its employee or contractor had no part in stealing it in the first place. Passive receipt of information is never a crime.

 

[goldcatt]

In the final analysis, the Court will grant Plaintiff's Motion for Summary Judgment and deny Defendent's similar motion. The Court will sever Section 1501 from the balance of the ACA and deny Plaintiff's request for injunctive relief.

Ten pages and, unless I've missed it, no one has noted that the health care reform law has not been ruled unconstitutional. Not only did Hudson specifically decline to halt implementation of the law, he rejected the plaintiff's request that he rule the entire law unconstitutional. Instead, he ruled the individual mandate unconstitutional and specifically severed it from the rest of the law, which survives intact. From a court that was obviously going to rule against the ACA, this is a surprisingly favorable ruling.



That depends on state leadership and has very little to do with this decision (even if the decision as issued stood, exchanges would still be constructed in every state). The best it can offer is political cover for governors or legislature that want to drag their feet. 48 states (and D.C.) are currently being funded to design/plan their exchanges. If some of them decide not to build exchanges, it doesn't really matter. If a state can't demonstrate in early 2013 that it will have a customized state-designed, state-run exchange operational by the end of that year, the feds will step in and build and operate one for the state. If a state doesn't mind ceding control over most of its individual insurance market to the federal government, it can sit on its hands forever, if it likes.



Actually, the score of ACA-related suits is 5-1 in favor of the ACA. In terms of those that have actually gone far enough to rule on the constitutionality of the law/individual mandate, the score is 2-1 in favor of it being constitutional. Today's decision is actually the anomaly, though you wouldn't know it by the champagne corks popping around here. Though, as I said, even for a defeat it's remarkable positive. About 2,690 pages of the law are untouched. Which is where all of the promising stuff lies.

I'm not sure I agree with the standard of review the judge chose to use, or his pretty much out of hand dismissal of Wickard and Gonzales, I think he made a decision that's above his pay grade here - but then again, somebody has to be the first to weigh in. That will be taken up at the Circuit level.

There are bits of bad logic in there (like suggesting the necessary and proper clause doesn't apply if the commerce clause itself doesn't directly apply) but overall I'm pretty relieved by this decision. Establishing severability is about the kindest thing this judge could have done. Somebody should send this guy a cake.

so you'll now tell us this is doable sans mandate?

Obviously not. Which was also part of the government's argument as to "necessary and proper". It's necessary to make the scheme "work".

 

[boedicca]

There are bits of bad logic in there (like suggesting the necessary and proper clause doesn't apply if the commerce clause itself doesn't directly apply) but overall I'm pretty relieved by this decision. Establishing severability is about the kindest thing this judge could have done. Somebody should send this guy a cake.

Uh. The ruling today did not establish severability. The hearing covered only parts of the law, and the judge essentially kicked severability to a future court to decide.

From page 40 of the ruling:

"Moreover, without the benefit of extensive expert testimony and significant supplementation of the record, this Court cannot determine what, if any, portion of the bill would not be able to survive independently. Therefore this Court will hew closely to a time-honored rule to severe with circumspection, 'severing any problematic portions while leaving the remainder intact'..."

Given the summary judgment nature of this hearing, he is not dealing with the entire law, only the few portions that have to do with the mandate. Another court will have to evaluate this issue in full.

 

[PixieStix]

Step 1.

My thoughts exactly

 

[Greenbeard]

so you'll now tell us this is doable sans mandate?

In case you don't read my posts: I've never found the insurance part of the law to be the interesting part. Near-universal coverage is nice and it's been the Democratic linchpin for several decades now. And while eliminating the individual mandate obviously creates adverse selection issues in exchanges (that, after all, is why it was included) there are ways around that, either at the state or federal level.

The rest of the law is designed to provide the tools to build a high-value (value roughly being understood as quality/cost) system. Those are untouched and those are where ACA's potential lies.

 

[Greenbeard]

Uh. The ruling today did not establish severability. The hearing covered only parts of the law, and the judge essentially kicked severability to a future court to decide.

When I use quotes, it's because I'm quoting something. Apologies if that's not clear. To again quote the decision in question:

"The Court will sever Section 1501 from the balance of the ACA and deny Plaintiff's request for injunctive relief."

 

[Avatar4321]

Sad thing about all this, is it still probably hasnt kept costs from going up. As long as the other parts of Obamacare go into affect, health insurance prices are going to go up because insurance companies wont be completely confident about the profitability rates.

As much as people like to pretend profits are evil, without them no one is going to be providing insurance.

 

[Zander]

What?

No cries of "Judicial Activism" from the right?

If you think this is "judicial activism" you really have no clue what that means.

 

[boedicca]

Uh. The ruling today did not establish severability. The hearing covered only parts of the law, and the judge essentially kicked severability to a future court to decide.

When I use quotes, it's because I'm quoting something. Apologies if that's not clear. To again quote the decision in question:

"The Court will sever Section 1501 from the balance of the ACA and deny Plaintiff's request for injunctive relief."

I read it. And I also quoted page 40 where the judge is being conservative.

http://www.vaag.com/PRESS_RELEASES/Cuccinelli/Health Care Memorandum Opinion.pdf

He is leaving severability as an issue for another court due to the limited nature of what he reviewed.

Page 38 and 39 have bits that support this view as well

"The bill embraces far more than health care reform. It is laden with provisions and riders patently extraneous to health care-over 400 in all…." - from page 38

"The final element of the analysis is difficult to apply in this case given the haste with which the final version of the 2,700 page bill was rushed to the floor for a Christmas Eve vote. It would be virtually impossible within the present record to determine whether Congress would have passed this bill, encompassing a wide variety of topics related and unrelated to heath care, without Section 1501." - from page 39

http://www.vaag.com/PRESS_RELEASES/Cuccinelli/Health Care Memorandum Opinion.pdf


He's saying he doesn't have enough information to rule on the entire bill.

The sooner this mes gets before the SCOTUS, the better.

 

[Trajan]

Ten pages and, unless I've missed it, no one has noted that the health care reform law has not been ruled unconstitutional. Not only did Hudson specifically decline to halt implementation of the law, he rejected the plaintiff's request that he rule the entire law unconstitutional. Instead, he ruled the individual mandate unconstitutional and specifically severed it from the rest of the law, which survives intact. From a court that was obviously going to rule against the ACA, this is a surprisingly favorable ruling.



That depends on state leadership and has very little to do with this decision (even if the decision as issued stood, exchanges would still be constructed in every state). The best it can offer is political cover for governors or legislature that want to drag their feet. 48 states (and D.C.) are currently being funded to design/plan their exchanges. If some of them decide not to build exchanges, it doesn't really matter. If a state can't demonstrate in early 2013 that it will have a customized state-designed, state-run exchange operational by the end of that year, the feds will step in and build and operate one for the state. If a state doesn't mind ceding control over most of its individual insurance market to the federal government, it can sit on its hands forever, if it likes.



Actually, the score of ACA-related suits is 5-1 in favor of the ACA. In terms of those that have actually gone far enough to rule on the constitutionality of the law/individual mandate, the score is 2-1 in favor of it being constitutional. Today's decision is actually the anomaly, though you wouldn't know it by the champagne corks popping around here. Though, as I said, even for a defeat it's remarkable positive. About 2,690 pages of the law are untouched. Which is where all of the promising stuff lies.



There are bits of bad logic in there (like suggesting the necessary and proper clause doesn't apply if the commerce clause itself doesn't directly apply) but overall I'm pretty relieved by this decision. Establishing severability is about the kindest thing this judge could have done. Somebody should send this guy a cake.

so you'll now tell us this is doable sans mandate?

Obviously not. Which was also part of the government's argument as to "necessary and proper". It's necessary to make the scheme "work".

you and I know this, , but I think GB may argue differently, we had this out in the past, in another place, not sure he remembers, but I do.

 

[Greenbeard]

He's saying he doesn't have enough information to rule on the entire bill.

He did rule. You understand that much, right? He ruled that Section 1501 is unconstitutional but he also ruled to sever it from the rest of the law. Thus he denied the request of Virginia's ambitious attorney general to issue an injunction halting implementation of the law. In other words, in his decision all of ACA stands except for the individual mandate and implementation is allowed to proceed.

Yes, he's very aware in this ruling that more important jurists than him will have the final word. That doesn't mean he didn't issue a ruling. Read all the way through to the end, dear.

 

[Trajan]

Ten pages and, unless I've missed it, no one has noted that the health care reform law has not been ruled unconstitutional. Not only did Hudson specifically decline to halt implementation of the law, he rejected the plaintiff's request that he rule the entire law unconstitutional. Instead, he ruled the individual mandate unconstitutional and specifically severed it from the rest of the law, which survives intact. From a court that was obviously going to rule against the ACA, this is a surprisingly favorable ruling.



That depends on state leadership and has very little to do with this decision (even if the decision as issued stood, exchanges would still be constructed in every state). The best it can offer is political cover for governors or legislature that want to drag their feet. 48 states (and D.C.) are currently being funded to design/plan their exchanges. If some of them decide not to build exchanges, it doesn't really matter. If a state can't demonstrate in early 2013 that it will have a customized state-designed, state-run exchange operational by the end of that year, the feds will step in and build and operate one for the state. If a state doesn't mind ceding control over most of its individual insurance market to the federal government, it can sit on its hands forever, if it likes.



Actually, the score of ACA-related suits is 5-1 in favor of the ACA. In terms of those that have actually gone far enough to rule on the constitutionality of the law/individual mandate, the score is 2-1 in favor of it being constitutional. Today's decision is actually the anomaly, though you wouldn't know it by the champagne corks popping around here. Though, as I said, even for a defeat it's remarkable positive. About 2,690 pages of the law are untouched. Which is where all of the promising stuff lies.



There are bits of bad logic in there (like suggesting the necessary and proper clause doesn't apply if the commerce clause itself doesn't directly apply) but overall I'm pretty relieved by this decision. Establishing severability is about the kindest thing this judge could have done. Somebody should send this guy a cake.

so you'll now tell us this is doable sans mandate?

Obviously not. Which was also part of the government's argument as to "necessary and proper". It's necessary to make the scheme "work".

whoops...see?

look at post 167, I answered you before reading on....hes forgotten...

 

[goldcatt]

There are bits of bad logic in there (like suggesting the necessary and proper clause doesn't apply if the commerce clause itself doesn't directly apply) but overall I'm pretty relieved by this decision. Establishing severability is about the kindest thing this judge could have done. Somebody should send this guy a cake.

Uh. The ruling today did not establish severability. The hearing covered only parts of the law, and the judge essentially kicked severability to a future court to decide.

From page 40 of the ruling:

"Moreover, without the benefit of extensive expert testimony and significant supplementation of the record, this Court cannot determine what, if any, portion of the bill would not be able to survive independently. Therefore this Court will hew closely to a time-honored rule to severe with circumspection, 'severing any problematic portions while leaving the remainder intact'..."

Given the summary judgment nature of this hearing, he is not dealing with the entire law, only the few portions that have to do with the mandate. Another court will have to evaluate this issue in full.

You missed the context there.

What they were discussing for a page or so prior to that was whether the bill without the mandate would have survived the Congressional vote, speculation on which was part of the Plaintiff's argument for trashing the entirety. In this the judge was absolutely correct that the argument is speculative at best.

Severability is a very different issue related to splitting off only that portion of the bill that is at issue in the order, and is always done with deference to the legislative. Which is why only the mandate portion was severed and declared facially unconstitutional, the rest stands. Failing to sever appropriately would have been a HUGE no-no in any final order from the District level.

And yes this decision is a final order. The next step will be a 3-judge Circuit panel.

 

[boedicca]

He ruled on only those portions of the law he reviewed and indicated he was using the "tried and true" conservative standard regarding those provisions.

He did not review the entire law; his ruling is not going to stand as the definitive word on Severability. The judgment includes that he didn't have enough information to rule on the entire law.

 

[Greenbeard]

you and I know this, , but I think GB may argue differently...

To be clear, allowing adverse selection will make insurance purchased through the exchanges more expensive. It will also make them less effective, as businesses eligible to bring their employees into exchanges will opt not to (and the competitive aspects of these markets will suffer). Which is why I expect intelligent states to deter adverse selection (and, perhaps once members of Congress are required to buy their family's insurance in the exchanges, maybe even Congress). If they don't, that's unfortunate for people who aren't in the group market. But there's considerably more to the law than that.

 

[Trajan]

so you'll now tell us this is doable sans mandate?

In case you don't read my posts: I've never found the insurance part of the law to be the interesting part. Near-universal coverage is nice and it's been the Democratic linchpin for several decades now. And while eliminating the individual mandate obviously creates adverse selection issues in exchanges (that, after all, is why it was included) there are ways around that, either at the state or federal level.

The rest of the law is designed to provide the tools to build a high-value (value roughly being understood as quality/cost) system. Those are untouched and those are where ACA's potential lies.

Oh I read your posts, I have been reading them and we have had exchanges on this topic long before either of us got here btw.

you crafted one of your patented 2000 word answers to my question regards the efficacy of the mandate, first we argued tax vs fee etc. then you formulated numbers showing how the mandate even at the lower tier # after the dems lowered it would help reimburse or buttress the grants to those that would need help buying policies etc....what? you don't remember that? I do.

I called your numbers all based on that a fantasy that was the mandate and that the mandate in fact IF it went forward would have to be much higher, that is at or even higher than what they started with and where we wound up to make the numbers work......and the last proviso was the gov's ability to manage such a complex system without playing favs ( unions etc.) and by passing inconvenient issues ala waivers....we didn't have the waivers enacted then, but I posited something very close....and here we are.

 

[goldcatt]

He ruled on only those portions of the law he reviewed and indicated he was using the "tried and true" conservative standard regarding those provisions.

He did not review the entire law; his ruling is not going to stand as the definitive word on Severability. The judgment includes that he didn't have enough information to rule on the entire law.

I'm sorry, but that's just not the case.

First, a summary judgment does not mean it was a summary hearing. It is a specific term for a specific type of final order handed out by the court after hearing all the facts and determining as a matter of law that there is only one possible outcome. The determinations of fact are not a material issue, either because there is no disagreement as in this case or because they simply don't matter.

Legal Dictionary | Law.com

The judge did, in fact, review the entire case brought before him - as is proper. What he found was that the mandate portion of the ACA was unconstitutional on its face - meaning that there was no constitutional basis for enacting it in the first place. Based on this, the VA Attorney General argued that Congress in its infinite wisdom would not have passed the bill without the mandate and asked for the entirety to be struck down in keeping with legislative intent. An argument the judge rightfully called speculative and tossed. Go back and read more than the quote you pulled, the discussion is fairly in depth on this subject.

It's a bright line, clear rule that when in doubt, the courts must defer to the legislature on matters relating to statutory construction and severance. So using that deference, the order itself is clear. The mandate, Section 1501, was severed from the rest of the ACA and the injunction against enforcing the rest of the Act was denied.

The procedural status is a little confusing since it's a summary judgment, I know. "Summary" seems to mean something it doesn't in this situation. But if you go back and read the whole opinion it will make sense.

 

[Greenbeard]

you crafted one of your patented 2000 word answers...

If my posts are too long, just say so. I've been working on explaining complex issues to children. I have very intelligent nieces and nephews.

I called your numbers all based on that a fantasy that was the mandate and that the mandate in fact IF it went forward would have to be much higher, that is at or even higher than what they started with and where we wound up to make the numbers work......

I assume at that point I pulled empirical evidence from Massachusetts, which has been using a slightly cheaper mandate (except for the highest income tier eligible for subsidies, as their mandate works slightly differently). But ACA's mandate may need to be increased to further deter adverse selection, we'll see. It was lowered multiple times during the legislative process to appease conservative voices but it's not clear that its final statutory level is insufficient.

and the last proviso was the gov's ability to manage such a complex system without playing favs ( unions etc.) and by passing inconvenient issues ala waivers....we didn't have the waivers enacted then, but I posited something very close....and here we are.

Again, the annual limit waivers are a bridge to exchanges. They won't exist after 2013 (indeed, I'd be surprised if they exist after 2012). You can drop the union schtick, since the largest and most visible beneficiaries of the annual limit waivers are prominent Republican contributors like McDonald's.

Luckily the job of managing most of the ACA will be done by the states, which I understand conservatives trust implicitly. Some of them are going to do a bang-up job.