Department of Health and Human Services v. Florida

[kellakk]

The Supreme Court began its deliberation over the recent health care plan today, and I'm wondering what everyone's opinions on it are. I've seen all (or most) of the news on the case, but news is quite often spun. As a student, I'm not altogether clear on legal matters, so any good explanation of the case that lays out both sides of the argument would be great.

From my limited understanding, it seems that the individual mandate part of the bill is questionable, and the Supreme Court may declare only this part of the bill unlawful. But I don't know anything, so go ahead, inform me!

[chilon]

Today the argument was about whether or not the Supreme Court could even hear the case because of an 1867law that forbids judicial challenge on tax law before the anyone has been taxed. Its arcane and procedural and the SC is very likely going to hear the case anyway so today was basically formality.

Tomorrow they hear oral arguments on whether or not the "individual mandate" is Constitutional. Thats the big deal. Its important because the "individual mandate" was put in by Obama to appease the HMOs who, without the mandate, opposed the other measures in the Affordable Care Act which was initially intended to reduce things like the cost of prescription drugs and rehabilitation services to seniors. The HMOs are the biggest supporters of the individual mandate.

The argument against the individual mandate is that the Government cannot force individuals to purchase private commodities. The argument for the mandate is based on the premise that every citizen engages in the health care system anyway throughout their lives and is therefore already subjected to the Commerce Clause regulation of the government.

[Matthias]

I'm against the mandate as a form of policy. I want a single payer healthcare system.

But as far as I can tell, it is perfectly Constitutional for Congress to create a law that mandates everyone to buy healthcare, even with a penalty involved for not doing so. Here's a good review of some of the opposition's arguments:

http://www.nytimes.com/2012/03/27/us...eme-court.html

Yes, they spring from libertarians. And honestly, it's pretty sad that this is even going to the Supreme Court, because it seems so open and shut, and the theory against the mandate so unwaveringly bad. But then, I remember that courts are often quite political, and that's what we have going on here.

They even had a libertarian attorney working with the libertarian group leading the charge debate at a college here with a professor of Constitution, and he got absolutely OWNED. His argument was so horribly bad from a legal perspective, it was almost completely emotional and slavish to what I can only call a libertarian cultish ideology. No precedent to support him, just a theory that Congress can't control "inaction", whatever the hell that is, and that somehow "not buying health insurance" is inaction, when it could easily be argued the other way, and when Congress has passed legislation on similar sorts of "inaction" in the past, and when there is no precedent saying Congress can't legislate on "inaction", but mostly because "not buying health insurance" is of course an "action" that leads to quite real results for society, like having everyone else pay for you when you go to the ER, so I think Congress might indeed have some power to legislate on it. But it was funny as hell seeing a "true believer" go up against reality. The scary part is that there are enough idiot justices out there with their own political slant they want to push to actually give the legal theory creedance at all, to the point it is in front of the Supreme Court.

Honestly, the 8-1 victory (with Thomas doing his best impression of a buffoon) for the mandate seems reasonable, but I'm pretty jaded about things, so I won't keep my expectations too high.

After all, the Supreme Court conservatives passed Citizens United, so I wouldn't put it pass them to bow to their political ideologies once more.

[chilon]

I'm against the mandate as a form of policy. I want a single payer healthcare system.

But as far as I can tell, it is perfectly Constitutional for Congress to create a law that mandates everyone to buy healthcare, even with a penalty involved for not doing so. Here's a good review of some of the opposition's arguments:

Honestly, the 8-1 victory (with Thomas doing his best impression of a buffoon) for the mandate seems reasonable, but I'm pretty jaded about things, so I won't keep my expectations too high.

After all, the Supreme Court conservatives passed Citizens United, so I wouldn't put it pass them to bow to their political ideologies once more.

I would not bet on an 8-1 in favor at all. This is an important decision that has not really yet been brought before the Court so I wouldn't take of those things as any indicator of how the court will go.

Some commentators point to Wickard v. Filburn as presenting a stare decisis but Wickard dealt with regulating producers rather than compelling consumer behavior. I actually think the challengers have a stronger Constitutional argument.

Based on the jurisprudence theory that each of the justices uses, I would say this is a 5-4 one way or the other with possible 6-3 against the mandate.

Alito, Thomas and Scalia are likely going to vote to strike down the mandate no matter what (all singing on a Fundamentalist opinion opposing the mandate). Roberts will likely vote to strike down the individual mandate and IMO might write a separate Minimalist opinion opposing it that differs from Alito and Thomas and Scalia's opinions.
Ginsburg, Kagan and Sotomayor will likely vote to uphold the mandate. Kagan and Sotomayor on political reasons but the opinion will probably be Minimalist as well. As a former ACLU attorney, if any of the three most liberal Justices jumped to oppose the mandate it would be Ginsburg.
Breyer seems like he could go either way really. I'm not convinced Breyer will support the support but it wouldn't be a surprise.
This leaves Kennedy again as a decider. Kennedy could go either way too but I am inclined to think he will oppose the mandate. As a Reagan appointee and as someone who does argue for individual liberty I just see him as opposing the mandate.


edit: oh I should add that the other question is if the individual mandate can be severed out of the rest of the bill. That is really an important part too because really the majority of Americans support most of what the Affordable Care Act does (expanding coverage for seniors) but the majority opposes only the individual mandate.

It was really a trap for Obama. He pretty much got outmaneuvered on this issue early on and was forced to abandon what he really campaigned on and what he won the election on (national health care) and he had to accept these compromise to get something passed.

[kellakk]

I see, thank you for your summary. Both arguments sound a little weak. It must have taken a lot of compromising to even get that bill through.

It's kind of sad that to get anything new through, we have to appease some big group, whether they're corporations or civil rights groups.

[MathiasOfAthens]

I am jumping ahead of myself here but what is stopping the court from striking down the mandate and setting a precedent for eliminating other mandates in other sectors like drivers insurance?

[Vin Mariani]

I am jumping ahead of myself here but what is stopping the court from striking down the mandate and setting a precedent for eliminating other mandates in other sectors like drivers insurance?

One thing that frustrates me is how this point is never brought up. People love the idea of everyone having drivers insurance, but then are repulsed when that doctrine is extended to themselves for other matters.

[xcorps]

One thing that frustrates me is how this point is never brought up. People love the idea of everyone having drivers insurance, but then are repulsed when that doctrine is extended to themselves for other matters.

I'm going to break this down for you so people will stop making this absurd comparison.

Driving a vehicle is a privilidge. You voluntarily enter into an agreement with the state you live in to enjoy that privilidge. The state maintains it's soveriegnty in this relationship because it takes responsibility for the construction and maintenance of highways, roads, and streets. It takes responsibility to ensure that drivers of vehicles meet certain minimum standards in terms of operational skill and knowledge of the safe operation of a motor vehicle. The state maintains certain minimum guidelines for the safe operating condition of vehicles. The state also requires that you maintain financial responsibility for the damages you may cause in an accident. This financial responsibility covers losses incurred by others due to your negligence in the operation of a motor vehicle.

You are not required to buy auto insurance. You are only required to maintain financial responsiblity if you operate a motor vehicle.

[Matthias]

I'm going to break this down for you so people will stop making this absurd comparison.

Driving a vehicle is a privilidge. You voluntarily enter into an agreement with the state you live in to enjoy that privilidge. The state maintains it's soveriegnty in this relationship because it takes responsibility for the construction and maintenance of highways, roads, and streets. It takes responsibility to ensure that drivers of vehicles meet certain minimum standards in terms of operational skill and knowledge of the safe operation of a motor vehicle. The state maintains certain minimum guidelines for the safe operating condition of vehicles. The state also requires that you maintain financial responsibility for the damages you may cause in an accident. This financial responsibility covers losses incurred by others due to your negligence in the operation of a motor vehicle.

You are not required to buy auto insurance. You are only required to maintain financial responsiblity if you operate a motor vehicle.

You are required to have driver's insurance if you drive.

Well, if you are alive, you need healthcare, so the analogy works perfectly actually.

[xcorps]

You are required to have driver's insurance if you drive.

That's what I said.

Well, if you are alive, you need healthcare, so the analogy works perfectly actually.

Nonsense. Absolute nonsense. Because this isn't about healthcare. It's about who is going to pay for it.

By your argument, I could pass a law saying everyone must buy two pair of Adidas Strata because everyone must walk.
Or everyone must purchase a hat because everyone has a head.

You only support this mandate because it fits loosely into your ultimate agenda. You cannot make a legitamite argument where the Federal government has the power to create this mandate.

[chilon]

You are required to have driver's insurance if you drive.

Well, if you are alive, you need healthcare, so the analogy works perfectly actually.

No. You don't "need healthcare" just because you are alive during every stage of your life.

You especially don't need to buy HMO insurance if you are in your 20s and healthy. I went over 10 years without health insurance (exercising frequently and rating healthy-never fast food joints), paid out of pocket for the one or two times I wanted medical attention (I didnt particularly need it though).

I already summarized both sides argument in my first post. If you don't think the government not being allowed to mandate citizens to purchase a private product is a stronger argument than the meandering logic of "since every needs 'healthcare'..." then I don't know what to say. Watch the court though, there is no way the mandate is passing 8-1. Thats a bad bet. If it does pass (and I still doubt it) it will be 5-4.

BTW its not just "libertarians" that oppose the individual mandate. I live in San Francisco. Listening to talk radio yesterday I can tell you that the majority of SF liberals who care enough to call talk radio oppose the individual mandate as well. Based on everything Ive seen the vast majority of Americans oppose the individual mandate.

Nonsense. Absolute nonsense. Because this isn't about healthcare. It's about who is going to pay for it.

By your argument, I could pass a law saying everyone must buy two pair of Adidas Strata because everyone must walk.

Exactly.

[Vin Mariani]

Driving a vehicle is a privilidge. You voluntarily enter into an agreement with the state you live in to enjoy that privilidge. The state maintains it's soveriegnty in this relationship because it takes responsibility for the construction and maintenance of highways, roads, and streets. It takes responsibility to ensure that drivers of vehicles meet certain minimum standards in terms of operational skill and knowledge of the safe operation of a motor vehicle. The state maintains certain minimum guidelines for the safe operating condition of vehicles. The state also requires that you maintain financial responsibility for the damages you may cause in an accident. This financial responsibility covers losses incurred by others due to your negligence in the operation of a motor vehicle.

So the logic behind it is to make sure people treat the infrastructure responsibly and to punish those who are costing others. So of course when we start talking about people without insurance going to the ER and not being able to pay which then drives up the cost of healthcare for everyone else in order to compensate, that's completely different right? I disagree. Our % of GDP going to health care services, is outrageous and it's because of people not being responsible.

[xcorps]

So the logic behind it is to make sure people treat the infrastructure responsibly and to punish those who are costing others. So of course when we start talking about people without insurance going to the ER and not being able to pay which then drives up the cost of healthcare for everyone else in order to compensate, that's completely different right? I disagree..

Buying auto insurance is not a punishment. It is a protection. The state government protects people who are caused a loss by another drivers negligence by mandating that a driver has at a minimum LIABILITY insurance. The requirements for comp/collision are for lienholders protection.

Our % of GDP going to health care services, is outrageous and it's because of people not being responsible

Which people are not being responsible and how?

The illegal immigrants? This individual mandate won't address that issue.
The young who elect not to purchase insurance? This mandate won't address that issue either, because the irresponsible are not going to suddenly become responsibe just because they are looking at a 2,000$ TAX that goes to the IRS and isn't paid to any healthcare provider anyway.
The irresponsible person who can't get insurance because he has a preexisting condition? This mandate doesn't address that either, because it's dealt with in another portion of the law.

So what irresponsible group of citizens are driving up health care costs? Doctors? Medical Schools? Medical Equipment providers? How does this mandate solve those issues?

What about the government itself? Medicare and Medicaid drive up healthcare costs...how does the individual mandate address that?

How about tort law? Doctors have huge overhead, in part due to malpractice insurance. That overhead cost gets passed on to the consumer. How does the individual mandate alleviate that?

That's not the impression I got from chilion and xcorps who seemed to be dismissing the idea of the law in its entirety.

Tell, what ideas do you think this law present that will reduce the costs of healthcare without reducing the quality of healthcare.

What in this 2000 page monstrosity that is now projected to cost more than 1.3 trillion dollars gives you better access to healthcare?

[Ciabhán]

I am jumping ahead of myself here but what is stopping the court from striking down the mandate and setting a precedent for eliminating other mandates in other sectors like drivers insurance?

That shouldn't be a mandate either. If you are worried about other drivers being uninsured you buy uninsured motorist coverage. Which by the way is also required by mandate in a number of states. Which should be an indicator that the mandate to be insured doesn't work all that well to begin with.

The government should never have the power to compel private citizens to purchase anything. If under threat of force.anyone else were to do so it would be criminal yet people think it serves some greater good if the government does. Personally if I remain in the U.S. and this stands I may drop my coverage just on principle. I'll pay the couple hundred dollar fine and save the $7000 the coverage costs. This law is nothing more than an insurance lobbyists' wet dream. They gain a captive consumer base.

On a side note: I used to travel to the U.S. from the UK for certain healthcare. My youngest son needed some specialist care when he was an infant and both the quality and speed of specialist care is currently better in the U.S. This is because the system the U.S. seems to want to adopt is broken.

[Matthias]

On a side note: I used to travel to the U.S. from the UK for certain healthcare. My youngest son needed some specialist care when he was an infant and both the quality and speed of specialist care is currently better in the U.S. This is because the system the U.S. seems to want to adopt is broken.

The US system is the best healthcare system in the world... if you can afford it. For the average joe, it is a very poor system among developed nations with some of the worst health outcomes for incredibly high prices.

How privileged you must be that you could afford to fly your son to the US to use good healthcare, many other fathers living in the US could not afford the same treatment for their sons, in fact, they couldn't afford any treatment at all.

I actually think the challengers have a stronger Constitutional argument.

What is their strong argument? I saw a representative for the group challenging give the argument, and he got crushed, it was hilarious. Their argument is that government can't regulate inaction. Well, first you have to say that there is such a thing as "inaction" in terms of economic activity. If you don't buy health insurance, that is indeed an "action" with reverberations across the economy.

IMHO, the Constitutional argument is laughable, it's all politics.

It's an incredibly poor theory made up by libertarians. Where in the Constitution does it say Congress can't regulate this? Nothing is pointed to. There is no precedent. Meanwhile, the commerce clause and necessary and proper clause have plenty of power and precedent to support just this sort of thing.

None of it stops the inevitable I suppose, that the US will have single payer healthcare, one day, and that probably miffs the libertarians more than anything I guess.

The analogy would more be like if the government tried to mandate everyone having to buy auto insurance even if they didn't drive (or rode bicycles)

No, that's a poor analogy, because everyone uses the healthcare system or will need to in order to stay alive at some point. Everyone.

One doesn't get to choose whether they need healthcare like with a car. Everyone needs it.

[chilon]

I am jumping ahead of myself here but what is stopping the court from striking down the mandate and setting a precedent for eliminating other mandates in other sectors like drivers insurance?

Driving is a privilege that people can choose to get a car and DL or not to. In somewhere like LA choosing not to drive might be impractical but in other cities like New York its very practical.

The analogy would more be like if the government tried to mandate everyone having to buy auto insurance even if they didn't drive (or rode bicycles)

[MathiasOfAthens]

Exactly, Astaroth.

[Sphere]

1.) The individual mandate is unpopular, for obvious reasons.
2.) Forbiding health insurers from considering pre-existing conditions is wildly popular
3.) Forcing hospitals to treat emergency cases is again, very popular.

However all these policies go hand in hand else you will have people not buying health insurance until they get sick, and/or abusing the ER

I would prefer a different system of regulation, but still it would be terribly short sighted for the court to find that the commerce clause doesn't cover this sort of careful crafting of regulation for an industry which makes up 17% of our GDP. The commerce clause allows for nuance so that Congress has the tools to deal with a modern economy. If the Supreme Court starts teasing out no-go zones which aren't clearly related to the Bill of Rights, but are instead linked to some foggy Libertarian notions of the Constitution, the Supreme Court, an unelected body, will be taking for itself decisions which should be left to the political branches of government. Such that if the people do/don't like the results of commerce regulation, they can elect a congress/president to change it, instead of being forced to amend the Constitution for something rather trivial.

[Matthias]

1.) The individual mandate is unpopular, for obvious reasons.
2.) Forbiding health insurers from considering pre-existing conditions is wildly popular
3.) Forcing hospitals to treat emergency cases is again, very popular.

However all these policies go hand in hand else you will have people not buying health insurance until they get sick, and/or abusing the ER

I would prefer a different system, but still it would be terribly short sighted for the court to find that the commerce clause doesn't cover this sort of careful crafting of regulation for an industry which makes up 17% of our GDP. The commerce clause allows for nuance so that Congress has the tools to deal with a modern economy. If the Supreme Court starts teasing out no-go zones which aren't clearly related to the Bill of Rights, but are instead linked to some foggy Libertarian notions of the Constitution, the Supreme Court, an unelected body, will be taking for itself decisions which should be left to the political branches of government. Such that if the people do/don't like the results of commerce regulation, they can elect a congress/president to change it.

I agree.

In a way, I wouldn't mind if they struck down the mandate, as then the only other solution would be single payer, which is what is ultimately needed. It could even quicken the pace towards single payer, as the current system continues to tumble down the road and become more and more unmanageable.

The only problem of course would be the thousands of people who would die as a result of not being covered by healthcare. But I guess it's best not to think about that.

But I will have to say that the Supreme Court is more partisan than ever if it's a 5-4 vote against what is obviously constitutional. Its legitimacy will be lowered by such a partisan split. Citizens United hasn't done it any favors in that regard.

[Sphere]

I agree.

In a way, I wouldn't mind if they struck down the mandate, as then the only other solution would be single payer, which is what is ultimately needed. It could even quicken the pace towards single payer, as the current system continues to tumble down the road and become more and more unmanageable.

The only problem of course would be the thousands of people who would die as a result of not being covered by healthcare. But I guess it's best not to think about that.

But I will have to say that the Supreme Court is more partisan than ever if it's a 5-4 vote against what is obviously constitutional. Its legitimacy will be lowered by such a partisan split. Citizens United hasn't done it any favors in that regard.

Depends on if the law as whole is struck down, or just the individual mandate.

If it is just the mandate, pre-existing condtions will still be too popular to repeal, and health insurers will have to start upping premiums through the roof to cover all the cancer patients who show up at the insurers door the day after they are diagnosed demanding an insurance policy.

If the whole law is struck down, the court is essentially saying the only way to get universal coverage is through a single payer government run program, not private insurance. A bit of irony for libertarians.