Languish.org

When Obama first passed his health care law I was pretty sure that the Supreme Court would uphold it. Since then I've changed my mind, I think it will be overturned. What about you guys?

http://www.nytimes.com/2011/11/14/us/politics/health-law-debate-puts-focus-on-limit-of-federal-power.html

QuoteSupreme Court Memo
Health Law Puts Focus on Limits of Federal Power
By ADAM LIPTAK
Published: November 13, 2011

WASHINGTON — If the federal government can require people to purchase health insurance, what else can it force them to do? More to the point, what can't the government compel citizens to do?

Those questions have been the toughest ones for the Obama administration's lawyers to answer in court appearances around the country over the past six months. And they are likely to emerge again if, as expected, the Supreme Court, as early as Monday, agrees to be the final arbiter of the challenge to President Obama's signature health care initiative.

The case focuses on whether Congress overstepped its constitutional authority in enacting parts of the law. Lower courts have reached divergent conclusions.

Even judges in lower courts who ultimately voted to uphold the law have homed in on the question of the limits of government power, at times flummoxing Justice Department lawyers.

"Let's go right to what is your most difficult problem," Judge Laurence H. Silberman, who later voted to uphold the law, told a lawyer at an argument in September before the United States Court of Appeals for the District of Columbia Circuit. "What limiting principle do you articulate?" If Congress may require people to purchase health insurance, he asked, what else can it force them to buy? Where do you draw the line?

Would it be unconstitutional, he asked, to require people to buy broccoli?

"No," said the lawyer, Beth S. Brinkmann. "It depends."

Could people making more than $500,000 be required to buy cars from General Motors to keep it in business?

"I would have to know much more about the empirical findings," she replied.

Judge Brett M. Kavanaugh, who ended up in dissent, then jumped in. "How about mandatory retirement accounts replacing Social Security?" he asked.

"It would depend," Ms. Brinkmann replied.

Ms. Brinkmann was cut off before she could elaborate on her answers. In other settings, she and other administration lawyers have described what they see as the constitutional limits to government power, though not typically using concrete examples.

They have said, for instance, that laws authorized by the Constitution's commerce clause must be economic in nature, must concern interstate commerce and must address national problems.

They have also said that the health care market is unique. And they have suggested that questions about constitutional limits can miss the point. The only question actually before the courts, they said, is whether the particular law under review was within Congress's authority. Other cases, they said, can be decided as they arise. But there is reason to think that at least some Supreme Court justices will want to hear what a ruling in favor of the health care law implies and what precedent it sets.

In 1995, when the court struck down a federal law that prohibited people from carrying firearms in school zones, Chief Justice William H. Rehnquist wrote that "we pause to consider the implications of the government's arguments" in defending the law — that stopping activities that could lead to violent crime relates to interstate commerce because it affects "national productivity."

Under that reasoning, Chief Justice Rehnquist wrote, "It is difficult to perceive any limitation on federal power," adding that "if we were to accept the government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate."

Chief Justice Rehnquist died in 2005, but three of the justices who joined his majority opinion — Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas — are still on the court.

The concerns expressed by Chief Justice Rehnquist amount to what lawyers call the slippery slope. Many judges are reluctant to issue rulings without some sense of what their consequences will be in other cases.

But defenders of the health care law say that such concerns are not a reason to doubt its validity.

"Slippery slope arguments are themselves often slippery," Walter Dellinger, who was acting solicitor general in the administration of President Bill Clinton, told the Senate Judiciary Committee in February. He gave an example. "If it is within the scope of regulating commerce to set a minimum wage," he said, "one might argue, then Congress could set the minimum wage at $5,000 an hour." But that would never happen, he said, for practical, political and legal reasons.

When a divided three-judge panel of the United States Court of Appeals for the 11th Circuit, based in Atlanta, struck down in August the mandate that individuals purchase and maintain health insurance from private companies, slippery slopes were very much on the minds of the judges in the majority.

"The government's position amounts to an argument that the mere fact of an individual's existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life," Chief Judge Joel F. Dubina and Judge Frank M. Hull wrote.

On Tuesday, on the other hand, a three-judge panel of the District of Columbia Circuit upheld the law. Judge Silberman, who had grilled Ms. Brinkmann so aggressively, wrote the majority opinion, and his discussion of the limits of Congressional power may have handed the administration a bigger victory than it wanted, because it presumably did not want to win on the grounds that Congress could do anything at all.

Judge Silberman said he remained troubled by what he called "the government's failure to advance any clear doctrinal principles limiting Congressional mandates that any American purchase any product or service in interstate commerce."

Then he adopted a version of Mr. Dellinger's argument.

"That a direct requirement for most Americans to purchase any product or services seems an intrusive exercise of legislative power," Judge Silberman wrote, "surely explains why Congress has not used this authority before — but that seems to us a political judgment rather than a recognition of constitutional limitations."

Judge Silberman said there were Supreme Court decisions on issues like regulating the use of medical marijuana that had endorsed broad Congressional power to legislate in the name of commerce.

"It certainly is an encroachment on individual liberty," he wrote of the health care law, "but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family."

In dissent, Judge Kavanaugh praised the majority for its honesty in describing what followed from its ruling.

"The majority opinion here is quite candid — and accurate," he wrote, adding: "The majority opinion's holding means, for example, that a law replacing Social Security with a system of mandatory private retirement accounts would be constitutional. So would a law mandating that parents purchase private college savings accounts."

Within hours of the decision on Tuesday, opponents of the health care law were issuing statements, and their theme was predictable. "Like the government," said Randy E. Barnett, a law professor at Georgetown, "the majority could identify no limit to an unprecedented power of Congress."

Fuck yeah. Obamacare is uncunstitutional.

Didn't ask what you think Siege, I asked what you think the Supreme Court will think.

Quote from: jimmy olsen on November 14, 2011, 12:57:11 AM
Didn't ask what you think Siege, I asked what you think the Supreme Court will think.

Is there a difrence?

QuoteCongress could set the minimum wage at $5,000 an hour

Oh, God, the hyperinflation would taste like the finest Reese's cup ever made.

CdM could not afford to pay for sex anymore.

I figure a 3-6 distribution against it.  Most likely, a 4-5, though.  Which would be rather unfortunate, but unsurprising.

We all know what the outcome will be, before the arguments are even made.  Supreme Court is just 9 senators for life these days when it comes to decisions involving politics.

I don't understand.  So Congress can tax citizens and then spend money on stuff, like fighters, embassies and whatnot.  But it can't pass a law that requires citizens to buy health care.  Something doesn't sound right. 

Quote from: Monoriu on November 14, 2011, 02:06:15 AM
I don't understand. 

There are 9 members of the supreme court, majority rules, and 5 are determined republicans.

Quote from: alfred russel on November 14, 2011, 06:52:20 AM

Quote from: Monoriu on November 14, 2011, 02:06:15 AM
I don't understand. 

There are 9 members of the supreme court, majority rules, and 5 are determined republicans.

I don't know if I'd count Kennedy, especially as a "determined" Republican/conservative.

I think this is a reasonable question. Is Obamacare like a Car or is it like School or is it it's own kind of thing.

- If it is like a car then you forcing the consmer to buy something and making it illegal not to.
- If it is like School then are making a certain service a requirement making it incumbent on the government to establish a public HMO, like a public school, where you can get your health care for free.
- If it is it's own kind of thing then nothing changes.

To take it the other way, yes, you might make it unconstitutional, but then again, you might just have made the department of education unconstitutional.

Quote from: Siege on November 14, 2011, 12:53:17 AM
Fuck yeah. Obamacare is uncunstitutional.

Have you even read the constitution?

Quote from: Monoriu on November 14, 2011, 02:06:15 AM
I don't understand.  So Congress can tax citizens and then spend money on stuff, like fighters, embassies and whatnot.  But it can't pass a law that requires citizens to buy health care.  Something doesn't sound right. 

The US government has only the powers given to it by the people via the Constitution.  There are many things it cannot do.  Whether requiring health insurance is one of them is what the USSC has to decide.

The US government can, and has, taxed people to pay for government-provided health care.  That's what should have happened here, but we had the second (maybe third)-worst Congress in history, so what we got was the Health Care Act of 2009 - a mutant bastard bill combining the weaknesses of the private and public health care systems.  It was supposed to be an improvement on Bush Care (whose cost increases were absolutely unsustainable), but I don't think the forecasts on which it was based are proving accurate.

Quote from: Razgovory on November 14, 2011, 07:13:30 AM

Quote from: Siege on November 14, 2011, 12:53:17 AM
Fuck yeah. Obamacare is uncunstitutional.

Have you even read the constitution?

He saw the movie.

5-4. Kennedy might surprise us. He's not that predictable.

Quote from: Ideologue on November 14, 2011, 01:05:51 AM

QuoteCongress could set the minimum wage at $5,000 an hour

Oh, God, the hyperinflation would taste like the finest Reese's cup ever made.

You need an accomodating monetary policy to generate hyperinflation.  A $5,000/hour minimum wage would just drive all labor to the gray market.

Quote from: Admiral Yi on November 14, 2011, 04:03:29 PM

Quote from: Ideologue on November 14, 2011, 01:05:51 AM

QuoteCongress could set the minimum wage at $5,000 an hour

Oh, God, the hyperinflation would taste like the finest Reese's cup ever made.

You need an accomodating monetary policy to generate hyperinflation.  A $5,000/hour minimum wage would just drive all labor to the gray market.

I was assuming that was how the government planned to practically execute their zany scheme.

Quote from: Ideologue on November 14, 2011, 06:46:16 PM
I was assuming that was how the government planned to practically execute their zany scheme.

The US has an independent central bank. :contract:

Quote from: Siege on November 14, 2011, 12:53:17 AM
Fuck yeah. Obamacare is uncunstitutional.

That's enough for me.

Quote from: Admiral Yi on November 14, 2011, 06:48:28 PM

Quote from: Ideologue on November 14, 2011, 06:46:16 PM
I was assuming that was how the government planned to practically execute their zany scheme.

The US has an independent central bank. :contract:

:(

Save me, Dr. Ben!

Quote from: Razgovory on November 14, 2011, 07:13:30 AM

Quote from: Siege on November 14, 2011, 12:53:17 AM
Fuck yeah. Obamacare is uncunstitutional.

Have you even read the constitution?

I knew the guys who wrote it.    :cool:

I found this an interesting analysis of the pros and cons for Obama, depending on whether or not it gets upheld or thrown out.

http://www.politico.com/news/stories/1111/68368.html

QuoteBarack Obama's Supreme Court health care gamble

By GLENN THRUSH | 11/15/11 4:38 AM EST Updated: 11/15/11 8:48 AM EST

President Barack Obama is so confident of the constitutionality of his health care law — and so happy to cast Mitt Romney as his human shield against the law's critics — that he didn't try to stop the Supreme Court from putting its review of the law on a fast track that will result in a ruling in the middle of the 2012 campaign.

Yet for all the administration's public optimism about the case's outcome, Obama's eagerness for a final resolution to the wrangling over the law represents no small roll of the political dice, one that could roil an already agitated electorate in unpredictable ways and quite possibly drag Obama back into the most divisive battle of his presidency.

His gamble: If the conservative Roberts court upholds the Affordable Care Act, it validates a titanic two-year legislative struggle. If the law is struck down, it would put the issue to bed four months before Election Day, fire up the Democratic base and energize angry party donors who'd see the decision as a second Bush v. Gore, a wallet-widening rallying cry.

"This issue would put the Supreme Court more front and center in a way that would focus Democrats on the fact that there will likely be two more appointments in the next term," said former Obama staffer Bill Burton, co-founder of Priorities USA Action, a Democrat-allied PAC. "When we talk to Democrats across the country, they are mindful of the fact that President Bush appointed two justices to the court. The consequences of a President Romney appointing two more could have a devastating impact on issues that matter to progressives across the board."

Yet the downside may not be worth the risk.

A decision striking down the individual mandate could galvanize the opposition in what's expected to be a neck-and-neck presidential race, reviving a tea party movement that has lost some momentum. And even Romney's authorship of a similar health care law in Massachusetts might not be enough to protect the White House from the wrath of independents who still blame Obama for a vast new government program that remains, when taken as a whole, widely unpopular.

"This is a big wild card, and anyone who feels they definitively know how this is going to play out doesn't know what they are talking about," said Eddie Vale, spokesman for Protect Your Care, a pro-reform group backed by labor and progressive donors.

"I think we're looking at a case that could be as significant politically as Roe v. Wade," adds Ilya Shapiro, a senior fellow in constitutional studies with the libertarian Cato Institute. "If it's struck down, it really hurts the administration because this is their biggest piece of legislation. ... If it's upheld, it will just fire up the opposition even more."

Democrats say that's overstating the importance of the issue at a time of 9 percent unemployment and talk of a double-dip recession. "This isn't going to be a defining issue in the election," said a party operative close to Obama, adding that most opponents of the law had made up their minds months, if not years ago.

"We have nowhere to go but up!"

That isn't a universal sentiment among Democrats. Earlier this year, some progressives urged Obama's legal team, led by then-White House counsel Robert Bauer, now the Obama campaign's lawyer, to file motions that would have delayed the ruling until after the 2012 election. Bauer and his team responded by saying they felt confident in victory and didn't fear the political fallout, two Democrats said.

"I didn't agree," said a person privy to one of the conversations. "But he was very convincing."

When reporters traveling with Obama in Hawaii asked deputy press secretary Josh Earnest on Monday if Obama was "worried about the election year timing" of the decision, he shot back: "He's not. He's not."

Earlier in the day, in fact, Obama had highlighted the reform effort during a campaign stop just hours after the high court announced it would hear arguments on the 11th Circuit Court's decision to strike down the law's requirement that every American obtain health insurance or face a tax penalty.

"Change is health care reform —" Obama said, interrupted by applause from the faithful at the Aulani Disney Resort who had heard news of the decision.

The individual components of the Affordable Care Act are far more popular than the law as a whole, and Obama ticked off the benefits of its most enticing provisions: "After a century of trying, a reform that will finally make sure that nobody goes bankrupt in America just because they get sick. And by the way, change is the 1 million young Americans who are already receiving insurance that weren't getting it before, because they can now stay on their parents' health insurance until they're 26 years old. That's a change that you made. At the same time, it provides everybody protection, so that if you get sick, if you have a pre-existing condition, you can still afford to get health insurance."

Gutting the health care law could have a boomerang effect, firing up the base. But it would also be a huge embarrassment, robbing Obama of a historic legislative accomplishment.

Moreover, it would draw him back into a schoolyard brawl with congressional Republicans at a time when he's doing his level best to distance himself from Congress, an institution whose overall popularity is plumbing the terra incognita of single-digit approval ratings.

And the revival of the health care debate could play a major role in a few selected swing states, especially Virginia, where Republican Gov. Bob McDonnell and Attorney General Ken Cuccinelli have campaigned effectively against the law.

"It's really got the Republicans here fired up," said an operative active in Virginia politics, noting that GOP candidates used the health care issue to take control of the state Legislative during off-year elections last week. "If the law is fully or partially struck down, Cuccinelli will whip these guys up all over again."

Then there's Ohio. Democratic officials told POLITICO that Obama's relentless push to pass health care reform alienated independents, the critical swing voters in a quintessential swing state, and anything that reminds voters of the issue is bad news for the president.

That fact was hammered home last week when an otherwise banner night for Democrats — the state's anti-collective bargaining law was rolled back by an overwhelming vote — was blighted by the 2-to-1 passage of a referendum calling for the end of the Affordable Care Act's individual mandate.

"Obamacare will be a huge issue next year," said Republican National Committee spokeswoman Kirsten Kukowski.

"We were always planning on it being a big issue, and last week the Ohio ballot initiative showed it was something that really resonated with voters. [The Supreme Court decision to hear the case] guarantees that it's going to be out there a little on the early side but right in the heat of the election."

Obama's campaign has a simple three-word retort to all of these claims: Willard Mitt Romney.

Romney is a formidable candidate, perhaps the toughest challenger in the GOP field for Obama to face in the long run. But the president's team couldn't have bio-engineered an opponent less capable of capitalizing on Obama's vulnerabilities than the one-time health reform crusader.

"We modeled our health care program largely on what he did in Massachusetts," Obama campaign strategist David Axelrod told the CBS "Early Show" last month. "Now he says I never intended it be a model for the nation. In 2007, he said this would be a model for the nation. And time and time and time again, Gov. Romney switches from one position to another.

Axelrod, a former senior adviser to Obama in the White House tasked with selling the health care bill to fractious Senate and House Democrats, used the reform to illustrate what he calls Romney's lack of a philosophical "core."

Romney "can't touch us on this. We'll hammer him," added a Democratic Obama ally shortly after word of the Supreme Court's schedule came out.

But Romney's campaign says it has no intention of remaining silent and plans to hit the Affordable Care Act hard on the grounds that it represents a federal intrusion into state affairs.

"Obamacare is bad policy and it's bad law," said Romney spokesman Eric Fehrnstrom in an email. "We've always maintained that states have powers that are different than the federal government and that the United States Constitution prohibits a one-size-fits-all insurance plan on the entire nation. On health care, what is important is that states retain the ability to pursue their own solutions, not have one imposed on them by Washington."

He is banking that the Court will strike it down.  Then they will come out with stories from the thousands of kids who get thrown off health insurance and try to tie Mitt in knots over the issue.