The Supreme Court & Obamacare

[alfred russel]

I am far from a strict literalist when it comes to the Constitution. But at some point it has to mean SOMETHING, right? Otherwise why even have it?

And fundamentally, the very basic purpose of the thing is to define what the government can and cannot do, and what powers the federal government has - surely *mandating* that people engage in a particular activity very much gets to the fundamentals of what the Constitution has to say about our government...

It is conceded that the government has the power to take money from me in order to buy me insurance.

This is about whether rather taking the money from me to get me insurance, they direct me to spend it on a variety of options they preapprove and heavily regulate.

From my lay point of view, this is an angels on the head of the pin argument.

[Jacob]

So... what will happen if the SC strikes down the mandates? What then?

[PDH]

So... what will happen if the SC strikes down the mandates? What then?

Freedom wins

[DGuller]

So... what will happen if the SC strikes down the mandates? What then?

I would think it would depend a lot of how much they strike down.  Do they strike down the mandate only, the mandate and the underwriting/pricing restrictions, or the whole law?  First one would be a disaster, second one would be bad, and the third one would be between the two.

[CountDeMoney]

So... what will happen if the SC strikes down the mandates? What then?

Freedom wins

And Liberty.  You forgot Liberty, too.

[derspiess]

I don't get the fetish regarding this stuff.

You remember your Democrat talking points well. 

[PDH]

So... what will happen if the SC strikes down the mandates? What then?

Freedom wins

And Liberty.  You forgot Liberty, too.

Dammit. I knew I was forgetting something.

[Berkut]

With that in mind, I would turn your question on its face.  There is no question that taken as a whole, the ACCA constitutes a regulation of interstate commerce under any possible rational post-1934 construction of that term.  Given that fact, why should it be a valid procedure to carve out and cherry pick individual pieces of a single comprehensive piece of legislation and test them under the Commerce Clause requirement as though they were free-standing and independent laws?  The simple fact is that the mandate is not free-standing and independent. It is an integral part of a single regulatory scheme and its specific purpose is to make that scheme work as designed.  To use the terms of McCulloch, it is the means employed to achieve a legitimate regulatory end, and one necessary and proper to that end.

Honest question:

OK, so if I understand this correctly, the argument here is that Obamacare is necessary and proper (assumed), and therefore it is not relevant whether or not particular portions are necessary and proper under the Constitution? As long as the whole is deemed so, the constituent parts are not separately contestable?

[Jacob]

So... what will happen if the SC strikes down the mandates? What then?

I would think it would depend a lot of how much they strike down.  Do they strike down the mandate only, the mandate and the underwriting/pricing restrictions, or the whole law?  First one would be a disaster, second one would be bad, and the third one would be between the two.

Elaborate a bit, if you don't mind...

If they strike down the mandate only, it's a disaster... for whom? The insurance companies? Poor people who won't be covered anymore? Everybody who needs health care? Obama's election chances? The Federal budget?

In the case of striking down the mandate, the mandate and the underwriting/ pricing restrictions, or the whole law; where does disaster strike? Who's set to suffer? And what, if any, feasible actions could be taken to mitigate the disaster for the affected parties? Are the disasters so big that it would be political suicide not to respond, or does it make sense to let the disaster wreak havoc for certain parties? What are there likely Republican and Democratic responses or likely fixes to the problems/ disasters that will come in the wake of any of the three repeal scenarios you mention?

[The Minsky Moment]

I don't get the fetish regarding this stuff.

You remember your Democrat talking points well.

Well let's talk about GOP talking points then.
One of the principal conservative mantras about the Courts is the need to reign in "judicial activism."  And under most definitions of judicial activism, the high point in terms of activist deployment of judicial powers is the use of judicial review to strike down legislation enacted by the other two (democratically elected) branches of government.  There is even judicial recognition of that concept in the presumption of constitutionality that attaches to legislative acts.

Yet here we have a case where even severe critics admit that the indentical ends could have been achieved through constitutional means but nonetheless object that Congress failed to use the correct "magic words" to achive those objectives.  A semantic failure is being deployed to try to take down a carefully negotiated and devishly complex act of legislation that took months if not years to devise.  That IMO is not a posture that evinces much respect for Congress or displays much restraint in judicial action.

We also have a case where critics - such as Justice Scalia - appear to be conceding that while the mandate may be "necessary" to an otherwise constitutional regulation of interstate commerce, it nonetheless is not "proper".  But since McCullough, any means selected by Congress is proper unless it contravenes some other constitutional limitation on federal power.  Yet in the argument, Scalia could not identify any applicable constitutional limitation other than the general principle that the federal government is a government of enumerated powers - which is irrelevant to a case in which the challenged action is concededly enacted as a means for effectuating one of those enumerated powers.

the giveaway in the argument was the odd phenomenon of supposedly conservative justices like Alito and Scalia getting in the weeds of discussing the substantive merits of the law  as policy - eg the point where Alito questioned the cost-shifting efficacy and the degree of subsidization.  Or the point where Scalia argued that the "problem" was "self-created" and could be solved by "simply not requiring the insurance company to sell it to somebody" [with pre-existing conditions].  That starts to look a lot like the Supreme Court saying that the Necessary and Proper Clause can't be deployed if there is some alternative policy choice that the Justices prefer that wouldn't require the need to invoke the Clause.  Whatever was meant, it certainly doesn't look much like judicial restraint.

[MadImmortalMan]

That's not what I think of when someone bleats about judicial activism. I think of courts finding powers not stated and finding laws constitutional on those grounds.

[Barrister]

That's not what I think of when someone bleats about judicial activism. I think of courts finding powers not stated and finding laws constitutional on those grounds.

This is absolutely what someone means when they talk about judicial activism - striking down laws that were validly passed by elected politicians on narrow or dubious grounds.

[Berkut]

That's not what I think of when someone bleats about judicial activism. I think of courts finding powers not stated and finding laws constitutional on those grounds.

This is absolutely what someone means when they talk about judicial activism - striking down laws that were validly passed by elected politicians on narrow or dubious grounds.

Uhhh, no, not really.

The grounds here are not dubious or narrow - they go straight to the basic question of what power the federal government has over the states and their citizens.

The power to FORCE someone to purchase health care is not assumed such that questioning it is "narrow or dubious". I can see the argument that this is in fact within the rather amazingly expanded scope of what the feds routinely do now, but I can see the counter argument as well, that is is not the same at all.

I see a *valid* bitch about judicial activism (and it is rather funny that when conservatives bitch about it Minsky and such argue that it is NOT, but now argue that it IS - I get the idea of the argument to point out that they are being hypocritical, but by definition if you accept that they were right enough such that NOT complaining now is hypocritical, you are also admitting that you are being just as hypocritical) as being the idea that a judge decides they don't like a law for whatever reason (like they are against abortion) that has nothing to do with its constitutionality and then fabricating something to strike it down.

Personally, I think it is a largely bullshit bitch about 99.5% of the time it is leveled, including this time. I think that while there is no doubt that justices have personal opinions that often line up with political ideologies, I think most of them operate in good faith as best they can.

[The Minsky Moment]

Honest question:

OK, so if I understand this correctly, the argument here is that Obamacare is necessary and proper (assumed), and therefore it is not relevant whether or not particular portions are necessary and proper under the Constitution? As long as the whole is deemed so, the constituent parts are not separately contestable?

The argument is that Obamacare is a whole is a regulation of interstate commerce.  In particular the provisions relating preclusion of discrimination for pre-existing conditions, guaranteed issuance and community rating fall into that category.  The argument then is that regardless of whether the individual mandate is constitutional in itself as regulation of commerce, it is nonetheless still constitutional because it is necessary and proper to effectuate the rest of ACCA; i.e. absent the mandate, these other provisions will be ineffective or even counter-productive and would thwart the commercial regulatory objective of Congress.

Going back to McCullough, it's the same reasoning.  The objection in McCullough was that Congress didn't have the power to charter a banking corporation under state law, since the simple act of chatering a corporation under state law was not in itself a regulation of interstate commerce.  But Marshall pointed out that Congress' overall objective was to regulate interstate commerce  doing things like issuing standardized bank notes that would circulate across state lines, and facilitate the transfer of federal revenues across sate lines.  Chartering the bank under state law, while perhaps not itself interstate commerce, was an action designed to facilitate those objectives.  It may not have been the only means, or the best means, or even a particularly wise choice of means, so long as it was "appropriate"  and "plainly adapted" to the end objectives.  The policy analysis he left to the judgment of Congress.

The McCullough principle has very sweeping ramifications, especially when mated to the broadened concept of what can constitute "interstate commerce" in the wake of the New Deal and the vast expansion of interstate commercial activity over the course of the 20th and 21st centuries.  IMO part of what is going on here is people reacting with surprise to the practical application of those principles.  One doesn't need to start talking about "living" or adaptable constitutions to get to a recognition of a very wide breadth of federal power.  It is simply a function of the reality that commercial activity in the US has evolved in way perhaps not anticipated by the Founders, who lived their lives in an era where the vast majority of economic activity was conducted within the confines of a local community (much less beyond the boundaries on an entire state) and had little if any impact beyond it.

[DGuller]

So... what will happen if the SC strikes down the mandates? What then?

I would think it would depend a lot of how much they strike down.  Do they strike down the mandate only, the mandate and the underwriting/pricing restrictions, or the whole law?  First one would be a disaster, second one would be bad, and the third one would be between the two.

Elaborate a bit, if you don't mind...

If they strike down the mandate only, it's a disaster... for whom? The insurance companies? Poor people who won't be covered anymore? Everybody who needs health care? Obama's election chances? The Federal budget?

In the case of striking down the mandate, the mandate and the underwriting/ pricing restrictions, or the whole law; where does disaster strike? Who's set to suffer? And what, if any, feasible actions could be taken to mitigate the disaster for the affected parties? Are the disasters so big that it would be political suicide not to respond, or does it make sense to let the disaster wreak havoc for certain parties? What are there likely Republican and Democratic responses or likely fixes to the problems/ disasters that will come in the wake of any of the three repeal scenarios you mention?

That's a lot of questions, and a lot of them are beyond my area of expertise, so I'm not speaking as a professional here.  Here is the executive summary:

1)  Only mandate repealed:

Individual health insurance market disappears.  Everyone who can't get covered by employers or the government is SOL.  Literally no one wins in this scenario.  Group health insurance provided by employers probably survives, but it's slowly disappearing on its own, as the increasing costs put pressure on employers.  This can be such a sudden disaster for the 9% currently insured by individual plans that it can force some political action.

2)  Mandate and underwriting restrictiosn repealed:

There are other useful parts to Obamacare, like for example insuring college graduates who lives with their parents and can't find a job.  However, the main goal of Obamacare would be destroyed.

3)  The whole law repealed:

We're back to status quo that is slowly but surely reaching epic fail status.  Something is going to give eventually, despite the best efforts of Republicans to convince their voters to vote against their interests, but the process of giving is going to be extremely painful.