Wednesday, March 28, 2012

The Individual Mandate Teeters -- and the Mule's Predictions

I listened to both hours of the oral argument on Tuesday regarding the "individual mandate" portion of the Affordable Care Act.  I also read the transcript (well, actually I did it in the opposite order).

I think that the mandate will be upheld.

And I reached that conclusion slowly, despite overwhelming public/press response that the argument had swung sharply in favour of the challengers.

I predict there will not just be two opinions (the holding/analysis and the dissent), but will be multiple opinions where the justices concur in the result, and some of the reasoning, but ultimately get to their individual view of how the Constitution and statute operate to reach the result.

Here is my vote breakdown [you can check my votes in June; it's like when Ebert predicts the Oscars]:

[btw, saying what the Justices "think" is my way of saying "that's what I infer from their questions"]





Breyer
 Ginsburg                will vote to uphold the mandate.  They plainly think that the failure to buy health insurance
plainly affects interstate commerce (plainly both health care and health insurance).
  They think health insurance plainly is "regulatable" as merely the method pf payment for health care. Plainly.









Sotomayor

Kagan                  will vote to uphold the mandate.

  I think they'll find a way to describe insurance as subject to regulation because of its undeniable effect on interstate commerce. They'll view mandating insurance to be sufficientl;y close to mandating that you buy grain rather than grow grain, and rely on Wickard v. Filburn, a 1942 Supreme Court case interpreting the Commerce Clause broadly to allow regulation of purely intra-state commerce (actually home use) because of its effects on interstate commerce. They'll also see a slippery slop to unwinding Social Security.








Thomas              will vote that the mandate is unconstitutional.  Heaven knows how he'll get there.




Scalia


Alito                  will vote that the mandate is unconstitutional.  The Constitution is fundamentally a limitation on the powers of Congress.
  Under the government's theory, the inactivity in insurance affects the interstate commerce in health insurance and health care.
  Under that theory, anything is subject to regulation, because all human activity affects interstate commerce [e.g. if you ride the bus rather than drive a car, you raise the cost of cars.  If you don't go to college, you raise the cost of goods in many ways, including by producing unskilled labour.  If you make music for a living, you increase the welfare rolls, etc. . .].  The parade of horribles is run out to test whether there's a limiting principle, and all the government does is describe the insurance and health care industries.  In the absence of a limiting principle that explains why this particular law is special, it can't be constitutional because it confers plenary power on the federal government, which is utterly inconsistent with the purpose of the Constitution.  And if plenary, it can't be "proper" under the "necessary and proper" clause (granting broad power to effect other Constitutional aims) because it's inconsistent with the Constitution's purpose.







Kennedy              will vote that the mandate is constitutional. 
He will find that health care is a unique industry that affects persons and commerce in ways that no other industry does, and he will craft a sufficiently limiting "principle" (even if it's a description) to satisfy himself.





Roberts                will vote that the mandate is constitutional.  He will have a hard time overcoming the examples he himself provided of other industries (and thus no, or a shaky, limiting principle).  But he will craft a clever way to find the health-care industry unique, and to link insurance (perhaps adopting the payment method argument, or joining Justice Kagan in her idea that we don't buy the insurance to look at an insurance certificate, but to buy the health care). 
He will ignore the challengers' response that people buy diversification of risk when they buy insurance, they're not buying the care.





The last two are obviously the tough ones.  Kennedy really seemed troubled that this is an argument for limitless power.  But he seemed to accept the notion that health care is unique.  And while he's not O'Connor -- with her refusal to draw bright lines and straddling all fences to achieve a desirable middle-o'-the-road outcome -- Kennedy does seem to embrace the idea that he is a line of reasonableness necessary to this great land of ours.  He won't wanna be the guy that killed a giant piece o' legislation enacted by the people's representatives.

Roberts is also tough.  He sees the Act as an exercise of plenary power, and sees that he'll be letting the genie out of the bottle.  But his institutional concern for the Court will want to avoid a 5-4 vote striking down such a huge statute, even if the statute is controversial.  The attitudes about the law are so overwhelmingly partisan now, and the law has been so politicized, that he won't want to allow the Court to appear to be driven by the politics.

The court isn't, in my estimation.  At least not "politics" as we normally think of them.  These justices just have fundamentally different views of the purpose and place of the Constitution and the role of the federal government under it.  They were nominated because they hold those views, and their views are used by the two parties to achieve those parties' political and policy aims.  But the justices aren't particularly driven by those aims.  Of course, it appears that it's policy-based, because the justices can't abide a policy that is inconsistent with their view of the Constitution and the federal government, so they are naturally antagonistic to those policies without attention to economics and budgets and methods and such.

Or perhaps I'm a naive fool.  But I see them vote against their supposed "party" often, and they do it because of their view of the Constitution and the role of the federal government under that document.

Check back in a couple ' months to see how I did !


25 comments:

Mister Parker said...

If there are fewer than six separate opinions, I'll be amazed.

I think the individual mandate will be upheld 6-3 (or maybe 5-4) -- with Scalia, Thomas and Alito definitely opposed and Roberts on the fence.

I think Kennedy will ultimately vote to uphold the mandate because he'll figure in his heart of hearts that if he strikes it down, he's saying that Congress doesn't have the power to fashion a solution to the single biggest money sink in the U.S. economy.

Because I think that's what this will really turn on -- five or six justices aren't going to say "sorry, the Constitution doesn't give us the power to deal with the problems of the day. Blame the Founding Fathers for not foreseeing this."

By the way, the Commerce Clause genie is already out of the bottle, and has been out of the bottle for seventy years -- what Scalia is really saying is he would have gone the other way in 1942. But given that universal health care was first proposed by, I think, Teddy Roosevelt, and it took more than a century to enact, I don't think there's as much pressure out there to mandate the purchase of, say, broccoli as one might think.

Anyway, I prefer to read the Commerce Clause broadly because the lack of a commerce clause is what doomed the Articles of Confederation and prompted the writing and adoption of the Constitution in the first place. Congress isn't horning in on something they have no business horning in on, it's the business they were created to do.

That, and fight the British.

But that's just me.

mister muleboy said...

If there are fewer than six separate opinions, I'll be amazed.

I think the individual mandate will be upheld 6-3 (or maybe 5-4) -- with Scalia, Thomas and Alito definitely opposed and Roberts on the fence.

I think Kennedy will ultimately vote to uphold the mandate because he'll figure in his heart of hearts that if he strikes it down, he's saying that Congress doesn't have the power to fashion a solution to the single biggest money sink in the U.S. economy.


It sounds like we're coming out in just about the same place.

I think if Kennedy were to vote the mandate unconstitutional, he will make plain in his opinion that all of the parties agreed that other ways existed to fashion a solution -- realistic but politically inexpedient ways -- and that Congress chose an impermissible path.

I don't see him doing that.

But the argument revealed that all of the parties agree that the use of the taxation power could address parties unable to afford health insurance. Collection of a permissible tax, and then use of that money to subsidize insurance for the uninsured, was agreed by all to be permissible. As was tax incentives for the currently "self-insured" to "incentivize" them to buy insurance. A carrot approach to the young, healthy folks buying general health insurance (rather than simply catastrophic insurance) rather than the stick approach of "buy it or else" that was chosen.

And the SG argued that this was a tax -- which was belied by the self-conscious, convolutions that Congress used to avoid making it a tax. And the challengers pointed out that a tax on certain parties for not engaging in something would constitute an impermissible direct tax that the Constitution consciously withdrew from Congress' quiver.

But there is a difference between saying Congress "doesn't have the power to fashion a solution" and "Congress has exceeded its authority to fashion this kind of a solution," especially when the solution arguably tears away the teeny "limiting principle" that still exists.

I think broccoli is a punch line (inadvertently used by a Republican senator during the confirmation process of Kagan), but I don't think I have to call on my radical fear of the omnipotent state to reasonably presume that (1) Congress will, if authorized to compel parties to engage in Commerce and then regulate it, be willing in the future to compel a broader and broader set of activities, and (2) the Supreme Court will leave those undisturbed, and have no truck with folks second-guessing those decisions.

mister muleboy said...

PART II

The Commerce Clause is certainly out of the bottle. But if a majority of the Court can articulate a limiting principle somewhere -- and here it might be "failure to engage in commercial transactions is unregulatable" (let's see them square that with Wickard) or "regulating health care is distinct from insurance, and while you say that 'everyone is a user of health care,' NOT everyone is a user of insurance" -- they could say that the genie's out, but it can't play on that field.

In practice, I too like a broad Commerce Clause; as much as I like the idea of a federal government leaving me be, commerce in this age of world-wide transportation and information-broadcasting is undeniably interstate.


But the Constitution, that pesky old social contract, arguably envisioned the clause as a limited sacrifice of "freedom from the yoke of the federal king" because it wasn't threatening -- it governed how people who had already contracted to exchange their property could do so. But if anyone had pictured that it would order you to enter into contracts and alienate your property, I think their hair [wigs] would'a stood up. They might have been more precise in their limitation.

In any event, I don't worry too much about it. I'm the beneficiary of the Act, the state already controls me totally (admittedly, it grants me the freedom to go about my business, but it's utterly at the government's discretion when and where I can), and all of the healthy kids who are subsidizing older unhealthy folks either didn't vote, or voted in the architects. And the mandate is ultimately a small matter -- if it can be upheld without handing Congress carte blanche. The idea of building a "comprehensive" health-insurance and health-care statute on top of the creaky old accidental system of insurance -- and employer-based insurance at that -- is ridiculous.

The fight's going to come down to how to fashion a changed system (from today's) that (a) allows the government to manage it for efficiency, or (b) minimizes the government's role as much as possible for efficiency. I don't think it will be this one in any event.

mister muleboy said...

In re-reading my original post, I note that I inadvertently struck on something:

the slippery slop of unwinding Social Security

I am an idiot.

It makes me a genius

except that I'm an idiot

Mister Parker said...

slippery slop

I missed that the first time around -- that's perfect.

I think if Kennedy were to vote the mandate unconstitutional, he will make plain in his opinion that all of the parties agreed that other ways existed to fashion a solution -- realistic but politically inexpedient ways -- and that Congress chose an impermissible path.

I'll buy that. If Kennedy votes down the mandate, that's what he'll say.

Don't think he'll vote it down, but what do I know.

If Roberts votes to uphold the mandate, it'll be in part so he can assign the majority opinion to someone (Kennedy or himself) who will write as narrow an opinion as possible.

Scalia will read his dissent from the bench and hold his breath until his face turns blue. Thomas will write about the nature of health care insurance in 1789 and call for a repeal of both the 20th and 19th centuries ...

mister muleboy said...

Mister Parker, your summary sounds just about right to me.

I feel sorry for Kennedy. I think he believes, analytically, that this is a departure from the admittedly broad stuff, and that it's dangerous, but he doesn't want to bring democracy and dying uninsured children to a halt.

So I think he'll vote to uphold.

Scalia will read a short list of horribles that is much worse than broccoli.

And long after he's dead and burried, they'll all come true, or worse.

And I, too, will be dead, so it's somebody else's problem.


And by 2104, humans will be extinct. . . .

Mister Parker said...

And by 2104, humans will be extinct. . . .

See, every cloud has a silver lining!

Lupner said...

This is so much more better than the discussions on the TV. Just sayin'.

Lupner said...

You can either delete 'more' or substitute 'interesting' for 'better' in that last comment. And yes, I do make my living helping others communicate 'more better', supposedly ...

Fred C. Dobbs said...

I agree with everything you guys said.

Except I think Kennedy and Roberts might vote to strike down the individual mandate.

I know, I'm really going out on a limb here...

Fred C. Dobbs said...

"The court isn't, in my estimation. At least not "politics" as we normally think of them. These justices just have fundamentally different views of the purpose and place of the Constitution and the role of the federal government under it. They were nominated because they hold those views, and their views are used by the two parties to achieve those parties' political and policy aims. But the justices aren't particularly driven by those aims. Of course, it appears that it's policy-based, because the justices can't abide a policy that is inconsistent with their view of the Constitution and the federal government, so they are naturally antagonistic to those policies without attention to economics and budgets and methods and such."

I've been thinking about this quote for the past few days, and I'm not sure I buy it. I think the justices' votes are most often politically-driven, rather than based on judicial principle, because they will almost always vote along predictable party lines, even if they have to twist and torture their previously stated judicial principles to get there. I don't have time right now to provide you with a bunch of examples, but I'd be interested in following up on this topic with you as we go along....

mister muleboy said...

It will be interesting to discuss with you.

I disagree with you here: because they will almost always vote along predictable party lines

because I don't think that they almost always vote that way.

I don't doubt or dispute that you will provide lots of examples of "party-line" decisions, but those won't be a surprise -- there are plainly deep philosophical differences in the two mainstream parties, and those philosophical differences are reflected in judicial appointments.

I'm trying to draw a difficult, imprecise distinction between (a) politics in a broader sense and (b)the philosophical underpinnings of the two big parties. I should have admitted more clearly up-front that I couldn't easily gauge where the two overlap. And perhaps my real observation is that we largely *don't know" the "political" views of the judges (with some limited exceptions), as they're manifested by their decisions reflecting judicial philosophies.

I think "politics" as I'm talking about them are driven by outcomes: "do I, the legislator/president, think that a law is a good thing?"

"Do I think a big national law banning guns is good for people?" "Do I think that a statute authorizing the building of a pipeline from Canada through Nebraska is a good thing?" Even this is ridiculously simplistic, since "good thing" is usually translated as "a thing likely to get me reelected." The limits of Constitutional authority are an afterthought, although principles about the role and size of government infuse all of those political questions I referred to.

I have a much harder time with the judges. I don't know if Breyer politically supports the regulation of reefer by the federal government, but I know that he voted that Congress had the power under the Commerce Clause.

I don't know if Scalia politically supports the regulation of reefer by the Feds, but I know that he voted for it as an exercise of the power to regulate commerce.

Do his political views twist him around to come out the other way on the Affordable Care Act? Maybe, but I don't see how they have to be what drives it. Nor do I see his views of weed driving his Raich decision. Similarly, Rehnquist might well have been a law-and-order Republican who likes a drug czar and thinks all 50 states should outlaw dope, but he voted that the federal government lacks authority to regulate it when grown for home consumption.

I can come up with a lot of examples just like you can. And perhaps I shouldn't have been so conclusory in saying that "they are driven by their philosophy." I can't know. But I think there are also boatloads of decisions where they do vote "predictably" on judicial philosophy, but not on "politics.

And a boatload of cases where two elements of judicial philosophy are in conflict, and the justice has to decide which to stick with. Stare decisis? Limited enumerated powers? Braod regulatory authority, or broad privacy rights? In those cases, there are some judicial principles that get sacrificed, but I don't see them always twisting and turning.

And there are some decisions where I don't see the judicial philosophy at work at all. Sometimes they seem political. Sometimes they seem purely personal.

And the judges will always piss off "their own party" at some point, not because somebody holds a gun to their head or they hold their nose when they reach a decision, or that those damned precedents bind them, but because their "understanding" of the Constitution is plain, and the political decisions of one or both parties just violate that understanding.

"Law and Order" Republicans probably blanche at Scalia's extensive Seventh Amendment

mister muleboy said...

you know, our discussions would pobabkly be a lot more useful if I ever edited myself, or even stopped to think.

I feel I am a faucet for Gahd's knowledge; I open my fingers, and all kinds of shit courses through them.

Rarely as I intended to convey them , of course.

Fred C. Dobbs said...

Yeah, I was thinking specifically about the marijuana case. Scalia thinks weed grown in someone's back yard for their private use affects interstate commerce, but the health insurance market doesn't?

I also thought some of the questions from Kennedy and the conservative bloc were appalling. "If Congress can force me to buy health insurance can they also force me to eat broccoli?" is as dishonest as it is asinine, and taken directly from the Tea Party playbook. That and questions like are...unbecoming of a Supreme Court justice, to put it mildly.

I thought the tone and substance of the questioning from the conservatives were inappropriately political, as in, not rooted in law but in pure politics.

I am nowhere near as confident as you guys that Roberts and Kennedy will uphold HeritageRomneyCare (but I suspect that if it had been the signature bill of a Romney administration they would uphold it).

mister muleboy said...

VOL I.

Yeah, I was thinking specifically about the marijuana case. Scalia thinks weed grown in someone's back yard for their private use affects interstate commerce, but the health insurance market doesn't?

Okay, I'll bite -- I'll go to Scalia's defense.

Scalia doesn't find "regulation of commerce between the states" to be defined solely by whether it "affects" interstate commerce. He finds the relevant questoin more complicated than that.

As he points out a few times (in his own Scaliawords), "affects interstate commerce" effectively has no limits, and thus is fundamentally inconsistent with a provision of limitation.

But Scalia also feels duty-bound, and perhaps comfortable (see Raich?) with the breadth of the Congress's regulatory authority over actors who electively enter an activity. He draws a principled distinction, he believes, in one who "affects" Commerce merely by being alive from one who affects Commerce by a decision to grow wheat, grow weed, hoard rubber gum -- you name it. So he reconciles this view by saying "yes it affects Commerce, but there must be a limiting principle, and inaction will be the limiting principle, since it still limits but is consistent with the Court's historical broad definition.

He won't accept "the health market is the hugest and most importantest market, and is especial," because he then puts five people on the Court in the position of second-guessing Congress when Congress says something is hugely important, or -- if the Court follows its traditional practice of deferring to Congress's findings on the effects on commerce, which he accepts (see Raich) -- accepting the flawed position that there are no limits. So he finds something affecting commerce is nevertheless outside Congress's power, which doesn't include the police power of the states.

"If Congress can force me to buy health insurance can they also force me to eat broccoli?" is as dishonest as it is asinine, and taken directly from the Tea Party playbook.

I find your statement both wrong and smart. I can't imagine that there ever could be anything dishonest about a question like that. Indeed, it's the opposite of honest or dishonest -- it asserts nothing. Indeed, if it's asinine or appaling, it is a softball to be crushed by the advocate.
And I don't think it's a dishonest inquiry along the lines of "he can't want to know the answer, he already knows his answer," because it's a legitimate question that had gone unanswered. Indeed, in another forum you pointed out the incomprehensible answer that the SG was offering, and substituted your own better answer.

mister muleboy said...

VOL. II

Why is it legitimate? If the SG hasn't articulated a limiting principle that you can understand, you ask again for a limiting principle. Does not eating broccoli affect interstate Commerce? Of course it does -- if enough people do it, broccoli prices are affected. Broccoli growers may choose other crops. They may leave farming for the big cities. Cats and dogs mating in the street. Is the SG willing to say that, and argue the "affects interstate Commerce" test, which seems unlimited? Or can he articulate a better one that persuades Kennedy? Does Kennedy secretly hope that he provides the very answer that you would give to the question. Or if Kennedy thinks he has one, will the government give him the option of writing in his opinion: "the government suggests that the limits of Congress are x,y and z. Under our existing jurisprudence, I agree."

I would have given the "can Congress force men to masturbate with lube?" A tricky SG would have then said "the correct inquiry is whether we could enforce the purchase of lube through a penalty if we thought that the diminishing sale of lube was of sufficient commercial interest to rouse Congress." And then he would be forced to answer. Kennedy and Scalia missed a bet there.I think you're smart, though, to link the question to the question posed by Republican senators during confirmation hearings. With so many fantastical questions available (see masturbation inquiry above), why would Scalia select broccoli? Laziness, or a passion to line up with the Republican senators. The moment I heard it, I thought it appalling, but not becuase it is either dishonest, or asinine, since I believe it's neither.

If the answer to broccoli comes back "that's asinine, your honour, broccoli would never have the effect on commerce to justify government compulsion," then Scalia would inquire if he were limited to always accepting Congress's determination of the depth of a problem, and if so, how did that limit COngress, since it could decide anything (admittedly with political repercussions, but an intended political limit alone would have obviated the need for an enumerate power/limitation)?

I like that simple, direct sentence. . . .

mister muleboy said...

VOL. III

Anyway, I didn't hear political questions at all -- the parade of horribles is a time-honoured line of inquiry*, as is a constant demand for a limiting principle. To those Justices, it isn't enough to say that Congress wouldn't do something (like burial insurance), but that Congress couldn't do something.

As a well-known lawyer for the People of New York once told me, the answer to the burial question should be "of course it could, but it wouldn't because that will never have the effect on Commerce. But if it did, sure." Same answer for broccoli. I think that beating up an advocate over and over, or asking hostile questions, will seem "political" when it's viewed through a political frame, which this hot-button issue at the center of political division almost certainly is.

I am nowhere near as confident as you guys that Roberts and Kennedy will uphold HeritageRomneyCare (but I suspect that if it had been the signature bill of a Romney administration they would uphold it).


I can't say that I'm confident of my prediction, so you're probably closer to me than you think. I had to make a prediction to interest my thousands of readers while I tried to make some observations on how their concerns differ from Thomas's or Alito's.

I think that if George Washington himself had proposed it, Thomas would vote against it (see Raich: This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined", while those of the States are "numerous and indefinite").

I think Alito would overturn a Romney administration too.

*(I once suffered for poo-pooing a parade of horribles; when I once called those offered by my opponent "silly" during my argument, a well-known judge and friend of John Riggins dressed me down for not addressing them)

mister muleboy said...

When reading this, I found the figure $600-$700 BIllION to be pauseworthy. . . .

mister muleboy said...

today seems a big day for "indeed"

mister muleboy said...

Fred -- you and I are such goobers; we always do this.

I run around saying "the federal government executive branch is waging war on the civil liberties of all Americans,setting up a police state with absolute power," and you say "I don't see it that way. Sure, I've got some reservations, but you are the Mule who cried Wolf."

You run around saying "the justices are engaging in an inappropriately political tone and substance in questioning, and I say "I don't see it that way. Sure, I've got some reservations, but you are the Dobbs who cried Wolf."

I'm not saying thast we don't believe our positions on these things, and I certainly don't think either of us is dead wrong. But I do think we're locked in an unending argument that is sport.

You know, like your fondness for the McCartney album. We disagree on that too, and could go at it for ninety-four comments.

Fred C. Dobbs said...

I really don't have a lot of spare time today, so I'll just take a crack at this:

"If Congress can force me to buy health insurance can they also force me to eat broccoli?" is as dishonest as it is asinine, and taken directly from the Tea Party playbook.
I find your statement both wrong and smart. I can't imagine that there ever could be anything dishonest about a question like that. Indeed, it's the opposite of honest or dishonest -- it asserts nothing. Indeed, if it's asinine or appaling, it is a softball to be crushed by the advocate.


It's dishonest. It assumes a false premise. The ACA does not require anyone to buy anything. It gives you a choice: get insurance or pay higher taxes. The gov't does that all the time. Give to charity or pay higher taxes. Buy a house or pay higher taxes.

It was a softball that the SG - who is now being called the Bill Buckner of SCOTUS litigation - swung at, missed, and gave himself a concussion on the backswing.

The SG's response to Alito's request for a succinct explanation of the limiting principle was a rambling, convoluted mess. An embarassment.

I would have said "The limiting principle is the subject matter: the US health care system. There is no other market with such a vast impact on interstate commerce where the uninsured can obtain free services and shift the cost to the insured and the providers. Should another national market some day emerge with those exact same dynamics - which you and I know will never happen - then yes, Congress could enact an individual mandate."

"Or, in other words your honor: the ruling is limited to the facts of this case. What's wrong with that? It was good enough for this court in Bush v. Gore!"

mister muleboy said...

get insurance or pay higher taxes. The gov't does that all the time. Give to charity or pay higher taxes. Buy a house or pay higher taxes.

As far as I can see on my own limited time, this is the only thing you say that I disagree with.

Congress didn't pass a tax -- it required its citizens to do something, and then it imposed a penalty for failing to do it. It self-consciously avoided passing a tax. Its proponent, the President, gave unequivocal speeches explaining that it isn't a tax. Congress did the same. Many might argue that it could never have passed if it imposed such a tax.

Is the effect the same? As far as I can see, pretty much. If they'd passed a tax, I don't think that we'd be here. And I think all of the litigants agreed that unless you were imposing a tax for not having the insurance -- arguably an impermissible direct tax -- that the taxing authority could grab a tax from everrybodyu, and credit those who'd bought insurance.

But Congress didn't do that. And I couldn't pillory a court if it said it couldn't countenance upholding a law on the taxing authority when COngress told the world it wasn't a tax. Nor could I fault a court for saying "well, we can't really play comparative outcomes on this. After all, it is this hugely important thing; everybody told us so. And now we're supposed to denominate something a tax when the statute told us its not? Uh uh."

I remember a round criticism of the Court for finding that the ADA didn't reach a certain situation. The critics of the Court's decision were steamed that the Court didn't see that the application was the logical outcome of the statute. And they were pissed that the Court effectively said "nobody passed the law that you want. They only passed this one." The Court has patently come into the President's rhetorical sights this week; it doesn't have press availability's to say "go look in the mirror COngress and President for being unable to pass the fucking bill that you now want us to uphold. You're telling me this is easy, but you made it hard."

When you and enough of your warbling pinko friends get behind me in my support of single-payer, and we can get it passed, we won't have this problem.

Fred C. Dobbs said...

When I read one of the lower court opinions striking down the mandate - I think it was out of Virginia? - that turned heavily on the finding that the "fee" was not a "tax", and that the ACA would have been constitutional if Congress called it a tax instead of a fee, I came to suspect that the conservatives in Congress insisted that the charge be called a fee rather than a tax in order to plant a poison pill in the bill which would render it unconstitutional. I also agree with you that the Dems and Obama avoided calling it a tax for political expediency.

I also think that if the analysis is going to be whether money collected for the federal government by the IRS as part of filers' tax returns isn't a tax because we aren't calling it a tax, that's good for the pro-ACA side. Because under the "if it walks like a duck" analysis, the court will say "doesn't matter what you call it, it's a tax."

mister muleboy said...

In addition to the Duckness of it all, the Court has a well-recognized duty to try to read a statute in such a way as to uphold its constitutionality. I think that Roberts could go that way. But I heard Kennedy trying to find a way, or at least wrestling with his conclusion that Congress had no power to impose the mandate, and I didn't hear him embrace the taxing authority.

Well, that's why they suit up and play. Either way, there'll be huge changes in health care, whether done under the rubric of ACA insurance plan or otherwise. . . .

Mister Parker said...

I got to the middle of Vol II down there somewhere and had a thought: why does the Commerce Clause necessarily have to be "limiting"? In its historical context, to me it's the opposite, that Congress was being gifted for the first time with the power to regulate interstate commerce. And the Founders felt the need to say so out loud because before that, the assumption (and fact) was that Congress (under the old Articles of Confederation) didn't have the power to regulate interstate commerce, a fact which necessitated writing a new constitution.

I think you're asking me to concede half your case by agreeing that there are limits to the Commerce Clause. The limit is that it affects commerce. Throw in the Bill of Rights, and the political consequences of making people eat broccoli, and there's your defense against tyranny. Period.

And if you don't like the plain language of the document, write another one.

All of which may have already been discussed but I didn't have the energy to read the remaining ninety-five comments ...