Supreme Court poised to strike down PPACA

[Alcibiades]

After Bush v. Gore, no one can suggest that the Supreme Court is an impartial, apolitical body. That case had everything that the literature on the Court would suggest would lead to the case not being heard, except for one thing: the Court cared a great deal that a Democrat not occupy the White House.

And so we go through a farce this week, with the Supreme Court hearing arguments about the PPACA. They will strike down the whole thing, not matter what is said. We've spent most of my lifetime dealing with this issue politically, and yet, here, when we find a political solution has been arrived at, the Supreme Court is set to strike down the whole thing and return to the status quo ante.

I had heard a supporter of the PPACA on the radio this week asked about portability, about how it would be that a provider in one state would be able to get paid by an insurer in another. His answer was that he didn't know, but that "I'm sure they thought of that." Folks, no one ought to make this argument either. The PPACA has no severability provision in it. Imagine that. How can that be? That's lawmaking 101: this is a big, important piece of legislation, one sure to go before the Cort at some point, and yet the severability clause was somehow left out in reconciling the House and Senate bills. We're supposed to buy that? Here it is, the most important health care legislation this country has ever seen, and severability was left out "by mistake?"

It's enough to make one paranoid. It's as though the whole thing has been a delay so that insurance companies can continue to ratchet up premiums and copays so that they can make ever more money. Its as if the same folks who made sure that the most important provisions wouldn't take effect until 2014 also knew that the court would strike it down before then, and so omitted a severability clause.

After the Supreme Court strikes down the PPACA, we need to make this a campaign issue. We have tried working with insurers, to the point of passing, under Democratic control, a proposal first outlined by the Heritage Foundation in 1989. If an insurance-run health care scheme is unconstitutional, then it's time for Medicare for all.

[ProSense]

1. Actually,

"Supreme Court poised to strike down PPACA"

...I doubt it: http://www.democraticunderground.com/1002462381

[elleng]

3. Thanks, Pro.

'"Obamacare" will be up held 6-3.'

http://www.democraticunderground.com/101620917

[joeglow3]

29. That is just wishful thinking and everyone here is clutching to it as fact

One main premise of this is that Scalia has morals and integrity.

[elleng]

30. It is the studied opinion of 2 experts,

but nothing more than that, an opinion.

[Alcibiades]

4. I hope you're right

But hypocrisy does not stop them from doing whatever they want, and whatever the 5 who would vote to strike down the law would want is determined by the national GOP. After all, it didn't bother them at all that we go to war with the goal of defending democracy abroad, all the while undermining democracy at home.

[elleng]

2. Try understanding how they approach making decisions,

and listen to Oral Argument Monday, Tuesday and Wednesday.

http://www.kaiserhealthnews.org/stories/2012/march/15/supreme-court-curtain-raiser.aspx

Further, 'Obamacare will be up held 6-3.'

http://www.democraticunderground.com/101620917

[Alcibiades]

5. I understand quite well

how they make decisions. I'm a political scientist. There are three theories regarding this: the legal model, the strategic model, and the attitudinal model. Now, what I learned in my PhD program was that the strategic model explains court behavior the best, but that does not really explain this court: if they care enough, they are not contrained by anything, which is what we would expect from the attitudinal model.

Scalia and Thomas are not obliged by anything in Gonzales v. Raich. That was empowering the federal government to go after people for doing stuff that states thought ought to be ilegal, something authoritarians always like. A legal rationale can always be found for this.

The conservative majority on the court's crowning achievement is in Morrison. Gonzales v. Raich was an exception that proves the rule, and this case will be another one in this line that reaffirms Morrison.

Whatever they say or write is simply post hoc justification for doing whatever they want to do in the first place. They are accountable to no one, and I doubt this president will stand up to them.

[elleng]

7. I'm an attorney,

studied 'Political science,' and know full well what they are or are not obliged to do.

Most important lesson: NEVER bet on what the Supreme Court will decide.

[Alcibiades]

18. Students of judicial politics

should pay little attention to what judges say and more attention to what they do. There are always legal arguments and precedent on both sides of an issue: moreover, it is possible to constuct an argument that appears consistent with almost any given "judicial philosophy" on either side of an issue.

Any vestige of faith that I ever might have entertained that the court gave a rat's ass about stare decisis, the constitution, its own institutional integrity or the public's opinion of it ended with Bush v. Gore. Those five revealed themselves to be purely partisan when the stakes are high enough, and three of them are still sitting. If they are embarassed enough by their own decision, they can simply declare whatever post hoc rationalization they tack onto the foregone partisan conclusion they issue "nonprecedential."

The conservative movement is today, and has been since the Reagan era, in lockstep, from K-Street to Congress to the SCOTUS. They are all reading off the same daily talking points. Since both possible nominees have declared that the PPACA is unconstitutional, it seems unlikely that they would undermine them in this way before the election.

I'd love it if the very smart people in the Obama administration are right and that there's no basis to declare the PPACA unconstitutional, but these are the same folks who failed to make sure that there was a severability clause in the final product, so there's no reason for optimism on that score. To me, the notion that Scalia, Thomas, Roberts and Alito care about ideas or principles more than their favored partisan outcome seems quaint. I don't have any money on it, but it seems to me that the real question is whether they strike down the whole thing or simply the mandate, but it should go without saying that they will find a way to enable Mitt Romney to point to the PPACA as an example of unconstitutional caesarism on the part of Obama this fall.

[Owlet]

6. Who are the 6 votes to uphold?

just curious..

[elleng]

8. Breyer, Ginsburg, Kagan, Sotomayor, Kennedy, Scalia.

[jehop61]

9. I think you're right

Scalia just might vote that way. He is a strict Constitutionalist

[elleng]

10. And he upheld an important principle here,

in an earlier case.

'However, most constitutional experts do not expect this to be a close case.

The individual mandate admittedly presents what lawyers call a case of first impression — meaning that Congress has never done anything quite like this before. However, if the justices adhere to well-established constitutional principles and do not disavow their previous rulings, a firm majority of the court will rule that the individual mandate is within Congress' constitutional authority.

The majority of at least six justices will include both Kennedy and one of the court's most predictably conservative votes, Antonin Scalia.'

http://www2.timesdispatch.com/news/2011/mar/06/tdcomm02-why-obamacare-will-survive-in-the-supreme-ar-884246/

[Owlet]

11. I'm certainy no constitutional scholar

but I thought Scalia's modus operandi was to reject any attempt to increase the power of the Federal government at the expense of the states and of individuals. If that is so, then how can he vote to uphold the individual mandate when that decision would make it difficult if not impossible for anyone to ever argue again that the Constitution limits Federal power? Don't get me wrong: I hope the ACA gets upheld. I'm just not as optimistic as you.

[elleng]

12. Underlying assumption doesn't work,

he is, after all, a scholarly jurist, and thus does not 'reject any attempt' to do anything in particular out of hand, imo.

P.S., I'm not optimistic, just sharing the opinion expressed by Bonnie + Peach, in Times Dispatch, of why Scalia is likely to follow his former thinking.

AND if he does as suggested, it does NOT mean that it would be 'difficult if not impossible . . . to argue . . . that the Consitution limits Federal power.' Its impossible to imagine the myriad contexts in which the Constitution vis a vis Federal power can and will be raised, in the future.

I appreciate your thoughtfulness, and hope DUers spend some time this week listening to Oral Argument. (I'm a bit frustrated that, as I'll be traveling Wednesday, I may not be able to hear Wednesday's argument. MAYBE there will be time and room in my brother's house, but not betting on it!)

[Rowdyboy]

13. Wouldn't Roberts be likely to side with the majority to protect "his"court from claims of excessive

partisanship? I agree with your prediction of a 6/3 decision, I just expect the 3 to be Scalia, Alito and Thomas.

But then I'm my last contact with the legal system was a class in con-law in 1975. I just would think the Chief Justice would be on the winning side in this particular case.

[elleng]

14. Possible; was listing mandatory and likely minimum.

And its not really my prediction, but that of Post Dispatch writers.

Chief might want to be among the yes votes on this, as Chiefs did in Brown and other contentious cases, but this one has so many ins and outs, I'm not willing to predict. Its quite a complex case, as you can see from this, so there are many potential areas for 'No' votes.

http://www.kaiserhealthnews.org/stories/2012/march/15/supreme-court-curtain-raiser.aspx

[Alcibiades]

22. So, after hearing the oral arguments

on the individual mandate, do you still think it's even remotely possible that Kennedy and Scalia are inclined to uphold the PPACA?

[elleng]

23. 'AFTER hearing the oral arguments?'

What planet you living on?

[Alcibiades]

25. The oral arguments on the individual mandate

Which are now complete.

[elleng]

26. Yes, and it takes a while to listen to them, doesn't it?

[Alcibiades]

28. Here's an exerpt:

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'thave the duty to rescue someone if that person is in danger. The blind man is walking in front of a car andyou do not have a duty to stop him absent some relation between you. And there is some severe moral criticismsof 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 therelationship of the Federal Government to the individual in the very fundamental way.

****
JUSTICE KENNEDY: And the government tells us that's because the insurance market is unique. And in the next case, it'll say the next market is unique. But I think it is true that if most questions in lifeare matters of degree, in the insurance and health careworld, both markets -- stipulate two markets -- theyoung person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.


****
It's hard to see Kennedy voting to uphold the law, if this is how he feels, let alone Scalia or Roberts.

[JDPriestly]

15. It was written by the insurance companies and intended to fail.

So now, can we get back to talking about single-payer at the state level, state by state.

[woo me with science]

16. The mandate was a planned bonanza for the one percent,

Last edited Sun Mar 25, 2012, 10:50 PM - Edit history (1)

orchestrated by both parties. It was the fully anticipated goal all throughout the faux negotiations and will be upheld.

They managed to require that every single American purchase an outrageously overpriced corporate product throughout his or her entire LIFE. What a brilliant scam on behalf of the insurance corporations, unprecedented in its scope and in the way our politicians manipulated both political sides in order to pass it.

Of course it will be defended at all costs.

[sabrina 1]

17. Why would they strike it down when it saved Big Insurance who were about to go bankrupt?

I'm betting on it not being struck down.

[Alcibiades]

19. Because Rmoney says it's unconstitutional

This will finally lay the ghost of Romneycare to rest. He'll be able to say that, unlike the Massachusetts law, the PPACA was found unconstitutional by the Supreme Court. I don't think they care so much about the insurance industry per se so much as getting the right partisan outcome.

[sabrina 1]

20. I disagree. It's laughable for Romney to trash a bill that is so similar to the one he

passed in Mass. only on a larger scale. I do NOT believe the SC has any intention of trashing it. This is what the Insurance Corps wanted, although they would have liked even more, and what the Big Corps want, rules.

[Alcibiades]

21. What they want is for the Republicans to win

Probably no better way to do that than to declare the greatest domestic policy achievement of this administration unconstitutional.

It is laughable that Romney would trash the PPACA, but of course no one notices hypocrisy in the GOP.

[kenny blankenship]

27. Medicare For All

Should have been our bottomline from Day One of the PRIMARIES.

Get real people. You cannot free yourself from servitude incrementally. You are either free or not-free. By refusing the stark choice of freedom and the pain of standing up for principle, you have sold yourselves and your children into perpetual bondage, tricked with a beautiful brochure.

As for why there were large dysfunctional flaws in the legislation like severability and so forth - it was never designed with a priority placed on ACTUALLY DELIVERING HEALTH CARE in the first place. The guiding design spec was to Lock Out Public Option competition with for-profit insurance, Enforce COLLECTION ACTIVITIES ON ALL AMERICANS on behalf of for-profit insurance with the Individual Mandate. After those goals were met, their attention naturally wandered, and details about how it was all supposed to work were skipped over. Twisting arms and emptying pockets was all it was really supposed to do. If it delivered guaranteed profits to the Insurance Mafia from every possible victim, it would be considered up to spec and working satisfactorily, no matter what else happened. "We'll fix that shit later."