http://www.sfexaminer.com/blogs/beltway-confidential/2011/01/breaking-federal-judge-rules-obamacare-unconstitutional

Federal judge declares entire act is void.

Not entirely unexpected, but man the comments on that article are depressing. What has happened to humanity?

Ugh...just ugh...

My final on last year's constitutional law exam was about the constitutionality of the Act...  there are very strong arguments for deeming the Act unconstitutional, and unfortunately I happen to agree with them.  A personal mandate was just not the right way to go.  It will be very, very interesting to see what the Supreme Court does.

Yeah, while I'm for the act, I can totally see the Supreme Court shooting it down just on that one aspect.

However, isn't it weird for a judge to bring up a quote the president during the a statement he made during campaign?

Into the Void - How the Democrats gave a conservative judge an opening to invalidate the health care law.

http://www.slate.com/id/2281290/

Not only is there a pretty good chance the Court will strike the law down, they'd be justified in doing so.  Congress has been pushing the limits of the Commerce Clause for decades, and I'm starting to think the Court is going to interpret this as far beyond Congresses' scope to legislate.  The conservative justices, certainly, are going to relish reigning the CC in and it has much more to do with constitutional interpretation than it does politics.  This is going to look terrible for Obama if the bill is voided, during an election year no less.  Fuck.

As for the footnote quoting Obama, it's a footnote, and judges often quote legislative history, press releases and the like in opinions on legislation.  I actually find that quote apt, and, frankly, troubling.

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Originally Posted by JuddL 

Not only is there a pretty good chance the Court will strike the law down, they'd be justified in doing so.  Congress has been pushing the limits of the Commerce Clause for decades, and I'm starting to think the Court is going to interpret this as far beyond Congresses' scope to legislate.  The conservative justices, certainly, are going to relish reigning the CC in and it has much more to do with constitutional interpretation than it does politics.  This is going to look terrible for Obama if the bill is voided, during an election year no less.  Fuck.

 

As for the footnote quoting Obama, it's a footnote, and judges often quote legislative history, press releases and the like in opinions on legislation.  I actually find that quote apt, and, frankly, troubling.

Hold on.  I'm curious to hear your reasoning why it will be struck down (beyond partisan bullshit from Roberts and the rest of the troglodytes).  I have yet to read an argument that leads me to believe the mandate is unconstitutional.

Quote:

Originally Posted by Devildoubt 

Hold on.  I'm curious to hear your reasoning why it will be struck down (beyond partisan bullshit from Roberts and the rest of the troglodytes).  I have yet to read an argument that leads me to believe the mandate is unconstitutional.

From the ruling itself:

Nothing partisan about that.

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Originally Posted by TzuDohNihm 

Quote:

Originally Posted by Devildoubt 

Hold on.  I'm curious to hear your reasoning why it will be struck down (beyond partisan bullshit from Roberts and the rest of the troglodytes).  I have yet to read an argument that leads me to believe the mandate is unconstitutional.

From the ruling itself:

 

 

Quote:

It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting - as was done in the Act - that compelling the actual transaction is itself 'commercial and economic in nature and substantially affects interstate commerce', it is not hyper bolizing to suggest that Congress could do almost anything it wanted.

 

Nothing partisan about that.

Yeah, I guess it's just happenstance that the Florida AG filed the lawsuit in one of the most conservative districts in a conservative state to make sure his lawsuit was heard by a Reagan appointee judge.  There was no partisan gamemanship there at all. To say nothing of the fact the judge ignores the concept that, in this case, economic inactivity has a substantial affect on interstate commerce since the uninsured still get care at places like emergency rooms, which increases the cost of care on the entire health care system.
 

Here's a pretty good article discussing the partisan nature of the Vinson decision: http://www.tnr.com/blog/jonathan-cohn/82545/vinson-ruling-affordable-care-act-mandate

Quote:

Originally Posted by Devildoubt 

Here's a pretty good article discussing the partisan nature of the Vinson decision: http://www.tnr.com/blog/jonathan-cohn/82545/vinson-ruling-affordable-care-act-mandate

I haven't read the opinion, so I can't comment on Vinson's legal reasoning, and it should be noted that the author of that article is not a lawyer (I'd be more interested to hear from Jeffrey Rosen).  But wherever you come out on the desirability of the law, you should realize that there is a very legitimate constitutional issue at the heart of the matter.  

Congress has the power to regulate interstate commerce under the commerce clause, but that power was originally a very, very narrow one.  Over time the courts broadened their interpretation of what kinds of activities could be regulated through the Clause.  Originally, the clause was simply not intended to regulate commerce within states let alone other kinds of activities affecting commerce.  Example:  In the late 19th century, EC Knight Company owned all but 5 sugar refineries in the United States and went ahead and purchased the 4 out of the 5 that were in Philadelphia, thereby converting a robust market into a severely monopolized one.  Under the Sherman Act (an antitrust act) the federal government tried to prevent the acquisition, but the Supreme Court held that they couldn't, that manufacturing was not commerce.  This is an example, not of a radically conservative opinion (it was decided 8-1), but of the way the clause was understood for more than half of our nation's history.  Congress couldn't implement child labor laws for decades because of this limitation.  It was only after the Court packing by FDR, and, frankly, judicial activism at the time, that this changed.  Today Congress' commerce authority in interpreted to include the power to regulate those activities that "substantially affect" interstate commerce, and the manner in which the courts arrived at what "substantially affects" commerce during the 1960s had practically unlimited application.  When abstracted enough, what doesn't "substantially affect" interstate commerce in some way?

In recent years the Court has pushed back somewhat, trying to limit the reach of the Clause, lest an enumerated power be contorted to allow federal regulation of, literally, anything.  Congress has never tried to regulate economic inactivity (which can certainly have affects on interstate commerce), but that is exactly what the mandate does.  Even for those of us who support health care reform, and I am among them, it would set a troubling precedent.  What if Congress decides it is in our best interests that everyone own a cellular phone?  Or that everyone work until they're 65?  Or that it's economically beneficial for families to have no more than 3 children?  Etc. Etc.  It's a question of how much power our federal government was intended to have. 

Without the mandate the bill is economically untenable.  It will only be a good thing if it leads to a public option (for which there is no constitutional issue), which should have been done in the first place.

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Originally Posted by JuddL 

 

Quote:

Originally Posted by Devildoubt 

Here's a pretty good article discussing the partisan nature of the Vinson decision: http://www.tnr.com/blog/jonathan-cohn/82545/vinson-ruling-affordable-care-act-mandate

I haven't read the opinion, so I can't comment on Vinson's legal reasoning, and it should be noted that the author of that article is not a lawyer (I'd be more interested to hear from Jeffrey Rosen).  But wherever you come out on the desirability of the law, you should realize that there is a very legitimate constitutional issue at the heart of the matter.  

Congress has the power to regulate interstate commerce under the commerce clause, but that power was originally a very, very narrow one.  Over time the courts broadened their interpretation of what kinds of activities could be regulated through the Clause.  Originally, the clause was simply not intended to regulate commerce within states let alone other kinds of activities affecting commerce.  Example:  In the late 19th century, EC Knight Company owned all but 5 sugar refineries in the United States and went ahead and purchased the 4 out of the 5 that were in Philadelphia, thereby converting a robust market into a severely monopolized one.  Under the Sherman Act (an antitrust act) the federal government tried to prevent the acquisition, but the Supreme Court held that they couldn't, that manufacturing was not commerce.  This is an example, not of a radically conservative opinion (it was decided 8-1), but of the way the clause was understood for more than half of our nation's history.  Congress couldn't implement child labor laws for decades because of this limitation.  It was only after the Court packing by FDR, and, frankly, judicial activism at the time, that this changed.  Today Congress' commerce authority in interpreted to include the power to regulate those activities that "substantially affect" interstate commerce, and the manner in which the courts arrived at what "substantially affects" commerce during the 1960s had practically unlimited application.  When abstracted enough, what doesn't "substantially affect" interstate commerce in some way?

In recent years the Court has pushed back somewhat, trying to limit the reach of the Clause, lest an enumerated power be contorted to allow federal regulation of, literally, anything.  Congress has never tried to regulate economic inactivity (which can certainly have affects on interstate commerce), but that is exactly what the mandate does.  Even for those of us who support health care reform, and I am among them, it would set a troubling precedent.  What if Congress decides it is in our best interests that everyone own a cellular phone?  Or that everyone work until they're 65?  Or that it's economically beneficial for families to have no more than 3 children?  Etc. Etc.  It's a question of how much power our federal government was intended to have. 

Cohn isn't a lawyer, but his analysis jibes with the opinions I've read from other attorneys.  In fact the more legal analysis I've read on Vinson's decision, the more it becomes clear that his decision was based on ideology and not sound legal analysis. But anyway...

"What if Congress decides it is in our best interests that everyone own a cellular phone?  Or that everyone work until they're 65?  Or that it's economically beneficial for families to have no more than 3 children?  Etc. Etc.  It's a question of how much power our federal government was intended to have. "

In the words of very great lawyer, it depends on why Congress felt it needed to do those things.

I think your concern about the far reaching effects of the individual mandate are overblown.  In the examples you've cited, the connection between the actions and their ability to substantially affect interstate commerce are too attenuated to justify a mandate.  However, in the case of health insurance, the connection is much stronger.  Individuals who do not have health insurance still get care, and that raises the costs for both individuals and companies, which is spread throughout the entire health care system.  In order to lower costs and make health care accessible through private insurance (which is a crappy way to go), the insurance pool needs to be widened.  Widening the pool will lower costs because healthier people and now in the pool and paying premiums, which increases revenue and combined with the cost controls in the bill, should lower costs for everyone.

The way I look at it, a mandate is a tool, and it's not appropriate in all circumstances.  If Congress oversteps its bounds with another mandate, the courts are there to remove it.  I really don't see the problem with it in this case, beyond the fact that it's a crappy way of handling health insurance.
 

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Originally Posted by Devildoubt 

 

In the words of very great lawyer, it depends on why Congress felt it needed to do those things.

But it doesn't.  Congress is a legislative body of enumerated powers.  Like it or not, Congress can't simply do whatever it wants so long as it has a good enough reason.

Look, I think the personal mandate is reasonable.  I even think it's better than nothing.  The fact that it is effected through a tax will be the only reason it is upheld.  The problem with the personal mandate is that you are opening a door you cannot close.  The government is very clearly pushing the boundaries of the commerce clause, and it remains to be seen how the Court will come out.  Whether Vinson's opinion was politically driven or not is irrelevant.

Here's a good article on the subject: http://roomfordebate.blogs.nytimes.com/2010/03/28/is-the-health-care-law-unconstitutional/?scp=1&sq=health%20care%20constitutionality&st=cse

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Originally Posted by JuddL 

 

Quote:

Originally Posted by Devildoubt 

 

In the words of very great lawyer, it depends on why Congress felt it needed to do those things.

 

But it doesn't.  Congress is a legislative body of enumerated powers.  Like it or not, Congress can't simply do whatever it wants so long as it has a good enough reason.

 

Look, I think the personal mandate is reasonable.  I even think it's better than nothing.  The fact that it is effected through a tax will be the only reason it is upheld.  The problem with the personal mandate is that you are opening a door you cannot close.  The government is very clearly pushing the boundaries of the commerce clause, and it remains to be seen how the Court will come out.  Whether Vinson's opinion was politically driven or not is irrelevant.

 

Here's a good article on the subject: http://roomfordebate.blogs.nytimes.com/2010/03/28/is-the-health-care-law-unconstitutional/?scp=1&sq=health%20care%20constitutionality&st=cse

You're mixing subjects here.  Of course Vinson's decision was politically motivated, but that's beside the current topic.

And I'm not advocating an unlimited Congress, either.  What I am saying is Congress (like the Executive, and the Judiciary) will always press against the limits of its power.  The other branches will check that power.  Before any other individual mandate can become law, it has to be signed into law and survive a court challenge.  There's nothing wrong with that process.

This mandate is constitutional due to the direct effect the uninsured have on health care costs, and the fact that Congress wants to make sure people with pre-existing conditions have coverage through private insurance.  The only way to make that happen is enlarge the risk pool.  This will not always be the case with everything Congress wants to do. 

If you haven't guessed, I don't truck with "originalism" much.

Quote:

Originally Posted by Devildoubt 

This mandate is constitutional due to the direct effect the uninsured have on health care costs, and the fact that Congress wants to make sure people with pre-existing conditions have coverage through private insurance.  The only way to make that happen is enlarge the risk pool.  This will not always be the case with everything Congress wants to do.

I'm not sure how I mixed subjects, but anyways, the above is an argument for why the mandate is reasonable, not why it's constitutional.

Everyone's a consumer of health care because no one wants to die prematurely. In a sense, right?

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Originally Posted by JuddL 

 

Quote:

Originally Posted by Devildoubt 

This mandate is constitutional due to the direct effect the uninsured have on health care costs, and the fact that Congress wants to make sure people with pre-existing conditions have coverage through private insurance.  The only way to make that happen is enlarge the risk pool.  This will not always be the case with everything Congress wants to do.

I'm not sure how I mixed subjects, but anyways, the above is an argument for why the mandate is reasonable, not why it's constitutional.

My argument is exactly why the mandate is constitutional.

Let's go over it again.  1: Congress has the ability to regulate interstate commerce.  The health care insurance industry substantially affects interstate commerce so it falls within Congress's sphere of regulation.   Congress passed a law that directs health insurance providers to do certain things. Since Congress can regulate this industry under the constitution, is able to pass laws that allow its regulations to be carried out. The individual mandate is a mechanism that is necessary for the new law to work (one might say its function is both necessary and proper, given how the health insurance market operates).  Ergo the mandate is constitutional.

2. Your arguments against the mandate (near as I can tell, please correct me if I am wrong) are A) that Congress is exceeding its authority to regulate the health care industry because the Commerce Clause was not originally intended to provide such a power, and B) if the mandate is allowed to stand, Congress would have the ability to order US Citizens to do anything.

Your second argument is a classic slippery slope argument that is not backed up by current SCOTUS case law.  As we saw in both Morrison and Lopez, the SCOTUS has applied limits to Congressional actions under the Commerce Clause. The Lopez factors clearly forbid your previous examples from becoming law, because their links to interstate commerce are too attenuated, and are non-economic activity.  The individual mandate, however, does not run afoul of Lopez because there is a direct link to the costs of health care and individuals who do not buy health insurance. Individuals who do not buy health insurance still receive health care, and that drives up the costs for the entire system.  The link is direct and immediate.

Your first argument, that Congress is not utilizing the Commerce Clause as originally intended, is immaterial.  Whether or not this legislation runs afoul of the original intent of the Framers does not matter.  The SCOTUS has ruled on the application of the Commerce Clause and as constructed, the Health Care bills regulations and mechanisms are Constitutional. Unless you want to re-litigate Marbury v Madison, that's all the Constitutional authority Congress needs. 

Your argument as explained in that previous post was not an argument as to why the mandate is constitutional... this post connects the dots.  And I get it, that's the argument that's going to be made.  But the question of constitutionality is not whether Congress has the power to regulate they healthcare industry, undoubtedly they do.  The question is whether they have the power to enforce a personal mandate.  People who do not purchase health care have a substantial effect on the health care market, that direct link exists, but there is a legitimate question about whether or not the SCOTUS will be willing to characterize their behavior as "economic activity".  Because strictly speaking it's not "activity", it's inactivity.  In any market, those who do not participate arguably have a substantial effect on that market.  Even our President, a constitutional scholar, has suggested as much as El Capitan's post indicates.

The reason that I mention the history of the CC is not because I think the SCOTUS is going to recommend a return to the original understanding of the Clause, not even Scalia would suggest that, but because I was trying to highlight how the CC does have limits.  These limits have gradually been eroded but, arguably, such a mandate crosses the line (as did Lopez and Morrison, albeit in different ways).

All I'm saying is that it's not clearly constitutional, and I'm not totally convinced that it ought to be.  I don't like the idea of the government mandating that people participate in a private market, regardless of the social benefits.  Particularly when this was not the only, or the most beneficial method of improving our health care system.  It is very possible that even a liberal justice will agree.

Quote:

Originally Posted by JuddL 

Your argument as explained in that previous post was not an argument as to why the mandate is constitutional... this post connects the dots.  And I get it, that's the argument that's going to be made.  But the question of constitutionality is not whether Congress has the power to regulate they healthcare industry, undoubtedly they do.  The question is whether they have the power to enforce a personal mandate.  People who do not purchase health care have a substantial effect on the health care market, that direct link exists, but there is a legitimate question about whether or not the SCOTUS will be willing to characterize their behavior as "economic activity".  Because strictly speaking it's not "activity", it's inactivity.  In any market, those who do not participate arguably have a substantial effect on that market.  Even our President, a constitutional scholar, has suggested as much as El Capitan's post indicates.

 

The reason that I mention the history of the CC is not because I think the SCOTUS is going to recommend a return to the original understanding of the Clause, not even Scalia would suggest that, but because I was trying to highlight how the CC does have limits.  These limits have gradually been eroded but, arguably, such a mandate crosses the line (as did Lopez and Morrison, albeit in different ways).

 

All I'm saying is that it's not clearly constitutional, and I'm not totally convinced that it ought to be.  I don't like the idea of the government mandating that people participate in a private market, regardless of the social benefits.  Particularly when this was not the only, or the most beneficial method of improving our health care system.  It is very possible that even a liberal justice will agree.

I see what you're saying.  Frankly, I'm not a fan of the mandate at all, but I still think that's it's constitutional as comprised, even when examining it under the Lopez factors.  If there's wiggle room, it's under the economic inactivity problem, as you highlighted.   But, given health care's unique issues, I think a line can be drawn in this instance that wouldn't work in others (like forcing everyone to buy a car, for instance).

Once something can be regulated, prohibitions and mandates are definitely allowed.  Look at OSHA and the reason why people have to wear safety equipment for some activities.  A big reason (of many, really) why the latest decision is so ridiculous is because it puts into question so much of the power of the current federal regulatory scheme.

Health care reform is likely having a major impact on many hoteliers. The rolling requirements mean that the clock started to tick when the Patient Protection,

genf20 plus

Meanwhile, once the healthcare bill goes into effect and people start seeing its benefits with their own eyes, maybe the "anti-Obamacare" propaganda will finally be seen as ridiculous.

Read the rest here:  http://www.forbes.com/sites/rickungar/2011/12/02/the-bomb-buried-in-obamacare-explodes-today-halleluja/

http://finance.yahoo.com/news/ap-newsbreak-medicares-drug-coverage-140356631.html

http://thehill.com/blogs/healthwatch/health-reform-implementation/123881-most-seniors-unaware-health-reform-closes-doughnut-hole

You're welcome America. It's my greatest hope that all these Republican nuts who proudly claim they will repeal the law will have such a stance explode in their faces in short order.

seeing as the SCOTUS is reviewing the healthcare issue, I thought it would be the time resurrect this thread....

I have to admit a bit of trepidation regarding the SCOTUS ruling against healthcare reform. Even though it shouldn't really matter, politics are going to play a big factor in their decision.

 related-

This article was published in a local paper the other day and IMO, shows the one of the blatant problems with the current healthcare system in the US.

This article hits home as I can personally relate to the author's situation in attempting to purchase health insurance.

There's no way this thing makes it out of the SC huh?  

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Originally Posted by Rando 

There's no way this thing makes it out of the SC huh?  

I don't think so. I think it all boils down to the mandate.

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Originally Posted by Mangy 

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I don't think so. I think it all boils down to the mandate.

Sadly, it always was.The administration's defense of it before the SCOTUS was tortured and convoluted. They have to find a way to do this and still follow Constitutional law. 

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Originally Posted by Dr Vivisector 

Sadly, it always was.The administration's defense of it before the SCOTUS was tortured and convoluted. They have to find a way to do this and still follow Constitutional law. 

If you really think about it, our entire legal system and it's laws ARE tortured and convoluted and have been for a long time.

The world we live in has become much more complicated since 1776 (hell, since 1960!) so it should only follow suit that the laws, IMO, should evolve and change with the times.

I do believe that Healthcare Reform does follow Constitutional law, albeit in a complicated way.

Unfortunately, to a large percentage of Americans these days, "complicated" is considered a bad thing....you know like science.

Quote:

Originally Posted by Dr Vivisector 

Sadly, it always was.The administration's defense of it before the SCOTUS was tortured and convoluted. They have to find a way to do this and still follow Constitutional law. 

The notion that ACA's mandate is unconstitutional is bonkers.  Absolutely bonkers.  Congress has the power to require Americans to buy health insurance under the Commerce Clause.  It really is that simple.  Anyone who says otherwise is trying to break the legitimate regulatory scheme enacted by Congress and the President for political purposes.

Quote:

Originally Posted by VTRan 

 

If you really think about it, our entire legal system and it's laws ARE tortured and convoluted and have been for a long time.

The world we live in has become much more complicated since 1776 (hell, since 1960!) so it should only follow suit that the laws, IMO, should evolve and change with the times.

  

I do believe that Healthcare Reform does follow Constitutional law, albeit in a complicated way.

Unfortunately, to a large percentage of Americans these days, "complicated" is considered a bad thing....you know like science.

 

Don't buy into the hype.  It's not complicated.  At all.  If you want a rundown (warning, big lawyer words):

http://balkin.blogspot.com/2012/03/understanding-affordable-care-act.html

Quote:

Originally Posted by Rando 

There's no way this thing makes it out of the SC huh?  

It's Justice Anthony Kennedy's world, and we're all just living in it.

ETA: posted wrong link, but now fixed.

interesting piece Spook, thanks...

I came across this positive article over on Mother Jones this morning...

Why Obamacare Will Survive

the part the really stood out to me was the final paragraph.

Sorry VTran.  I posted the wrong link in my post above.  Here's what I wanted to direct you guys to:

http://balkin.blogspot.com/2012/03/understanding-affordable-care-act.html

Quote:

Originally Posted by Spook 

Sorry VTran.  I posted the wrong link in my post above.  Here's what I wanted to direct you guys to:

 

http://balkin.blogspot.com/2012/03/understanding-affordable-care-act.html

Ok, that makes a little more sense....:)

Really seems that the law is going to be struck down.

http://slatest.slate.com/posts/2012/03/27/scotus_health_care_hearings_conservative_justices_pose_hard_questions_about_mandate.html

 

All I can really say is, Motherfuck this Supreme Court.
 

Quote:

Originally Posted by VTRan 

 

I do believe that Healthcare Reform does follow Constitutional law, albeit in a complicated way.

Unfortunately, to a large percentage of Americans these days, "complicated" is considered a bad thing....you know like science.

 

 

 

Yeah, but the SCOTUS is the best legal minds we have. It shouldn't be that tortured a explanation to them, should it? 

Don't get me wrong, I want this to somehow survive. I don't have coverage now. 
 

Can anyone post that "I Got This" JPEG? 

I think it's looking bad now, but the writer of the Mother Jones article that VTran posted makes a good point.  If the Court strikes this down, it will undo precedent dating back to the early days of the Republic (as built by the Constitution, so 1789, not 1776).  It may be 5-4, but it'll likely be 7-2, with Scalia and Roberts joining a Kennedy opinion wherein the mandate gets upheld as a "necessary and proper" mechanism to enforce ACA and make sure that the President can implement the new regulatory regime.

Sign it!

Quote:

Originally Posted by Spook 

Can anyone post that "I Got This" JPEG? 

 

I think it's looking bad now, but the writer of the Mother Jones article that VTran posted makes a good point.  If the Court strikes this down, it will undo precedent dating back to the early days of the Republic (as built by the Constitution, so 1789, not 1776).  It may be 5-4, but it'll likely be 7-2, with Scalia and Roberts joining a Kennedy opinion wherein the mandate gets upheld as a "necessary and proper" mechanism to enforce ACA and make sure that the President can implement the new regulatory regime.

The Mother Jones prediction was predicated on the Court being honest brokers in all of this.  I have no such faith. Frankly, neither should anyone else.