Posted on 03/28/2012 11:07:23 AM PDT by SeekAndFind
Jeffrey Toobin tweeting from today's Supreme Court hearing on Obama's health care reform:
We're getting the quick reports now.
There is just a 20 minute window for reporters at the court to file their dispatches from this morning's arguments over whether the individual mandate to buy health insurance could be separated (and struck down) separately from the rest of the law.
In other words: if the court finds the mandate is unconstitutional, does just the mandate go away, or does the entire law fall with it?
Over at SCOTUS Blog Tom Goldstein writes:
The Court is really struggling with severability. Generally speaking, the more conservative the member the more likely they were to believe that more would have to be invalidated. Justice Scalia would strike down the entire Act. Most likely would be guarantee issue, community rating and some other pieces essential to keeping insurance prices low. Tea leaves suggested that Justice Kennedy would vote to invalidate the mandate but nothing super-clear. Farr was excellent.
Reports on Twitter that Justice Anthony Kennedy, the key swing vote has been arguing that it may be more extreme of the Court to pick and choose which parts of the law are unconstitutional:
From Phil Klein who is at the Court:
More updates from SCOTUSBlog's Amy Howe:
We are roughly two-thirds of the way through the severability argument. The government’s lawyer was finishing up when I left the building. So far it is hard to see where this one is going. Almost all of the Justices asked Clement questions, and many were skeptical of his argument that if the mandate and the provisions link to it go, all that would be left is a hollow shell.
(Excerpt) Read more at businessinsider.com ...
I predict that the court will strike down the mandate 5-4, with Kennedy as the deciding vote, but uphold the rest of the act, also 5-4, with Chief Justice Roberts as the deciding vote.
Assuming what you say is true...
How will Obamacare function without the individual mandate? CAN IT FUNCTION AS INTENDED?
I think more likely the whole thing gets tossed, as Scalia rightly pointed out that “we’re not going to read your 2700 page bill”.
However, if you are correct, what I expect will quickly happen is that the health insurance industry will become a formidable political force for repeal.
They won’t be getting 40 or 50 million new customers at gunpoint. They will be getting restrictions and regulations of the Obama crap sandwich.
The return of Harry and Louise, anyone??
“CAN IT FUNCTION AS INTENDED?”
Sure it can; the cost just quadruples...
The funny part, as much as many here hate Mitt, the lawyer arguing against Obamacare actually used Romney’s argument that the states are allowed to do this where the federal government is not.
Without the mandate, what is left of the law that will affect behavior is the pre-existing conditions mandate, which means that everyone will ditch insurance and buy “coverage” only when they get sick.
I don’t think the people will allow this to continue very long, as it would destroy the health insurance industry.
The "1"---Kagan.
And where will the IRS agents find another job?
I think you are being very optimistic.
I have been listening to the arguments, and Ginsberg and Breyer are definitely on board. Sotomayor is surprisingly a wildcard here.
I think Kennedy is actually a solid NO on both counts. Roberts is loathe to tread anyplace where “judicial activism” could be suggested. I hope I am wrong about him, though.
AT BEST, it all gets tossed out 6-3.
But you are correct that Kagan is insufferable, and has no business ruling on this case (or any for that matter).
It cannot function as intended. It would have to be reworked. And Congress is quite different now.
That the decision will be 5-4 for or against the individual mandate looks like a sure thing.
But it’s too soon to be optimistic.
Much has been written about the aggressive questioning of Justice Kennedy and the conservative side of the court.
However, from the liberal side, Justice Stephen Breyer appeared to see the mandate and the market from a completely different point of view. Breyer at one point suggested that everyone automatically becomes a participant in the heatlh-care market as soon as they’re born. Because no human being can escape illness, Breyer said, everyone will at some point require medical services; this includes those who cannot pay or those who lack insurance.
Justice Ruth Bader Ginsburg, who embraced the same vision of the health-care market, argued that a person’s refusal to buy health insurance is actually a choice to pass on potential health-care costs, and “they’re making the rest of us pay for it.” Justices Sonia Sotomayor and Elena Kagan appeared on board with their fellow Democratic appointees.
Kennedy in particular seemed to soften near the end of the hearing, acknowledging the problem of the millions who are uninsured and pondering out loud about how the government could address that.
So, no reason to celebrate yet.... it could go the other way.
The states are allowed to do it.
Doesn’t mean they should, but they certainly can.
The Fed - no way.
There is no judicial reason not to strike the whole thing down.
Today would be the perfect day for a simple argument:
Kennedy expressed concern that this is so unique that we might have to bend the constitution a bit.
But all parties unfortunately agree that, if the congress had simply made the penalty a tax incentive, it would be cool. In other words, if congress had given every person a $5000 tax, and then provided a $5000 tax credit each year you could show you owned insurance, that would be constitutional.
But that means the court doesn’t really have to twist ANYTHING. All they have to do is rule the law as written unconstitutional, strike the entire law, but stay their ruling for 6 months to give the congress time to fix the law to make it constitutional.
If the congress doesn’t act in 6 months, the law is gone. But the judges haven’t taken away the power of the congress to legislate — the congress is free to legislate, that the court has simply told them they can’t use a mandate with a penalty.
Of course, politically congress won’t re-pass the law, but that isn’t a judicial question. But because congress COULD easily (from a functional view, not political) fix the law and re-pass it, there is no excuse for the court to bend the constitution around the law.
I think this would be a harder case for the court to rule on if there was NO WAY they could see for this job to get done. But with such an easy answer, why not just let congress fix it?
TSA of course!............
The government’s original argument in favor of the healthcare law was to cite the Commerce Clause of the Constitution, arguing that healthcare affected the ‘interstate commerce’ and therefore was under Federal jurisdiction.
But health insurance is not sold across state lines, it is regulated in each individual state by their own insurance commissioners and laws.
How then can they argue that it should be under Federal control?...........
I agree, it all goes down like the HMS Titanic with a vote of 6-3.
LOL, no way can they.
The Commerce Clause is not the only issue here.
There's that little doctrine of negative rights thing, too.
States can do it under police power.
Doesn’t make it right. Just makes it so.
By invoking 14th Amendment corporate jurisdiction, which creates federalized corporate states as mere branches of the federal corporate government, and does the same for counties and cities, too.
You can always tell this is going on by the word "of." As in "State of," "County of," "City of,." The word "of" is used as a presumption invocation of the unspoken word "Federal."
So the actual legal terms being portrayed by the word "of" is: "Federal Corporate State of," "Federal Corporate County of," and "Federal Corporate City of."
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