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Obamacare Goes to Court: Day Two

» NY Times: Hard Questions From Justices Over Insurance Mandate

Doesn't sound like the individual mandate had a good day in court yesterday. Says Ezra ...

The quick read is that today went very badly for supporters of the individual mandate. As one of the experienced Supreme Court watchers who runs SCOTUSblog tweeted, “Paul Clement” — the attorney arguing against the health-care law — “gave the best argument I’ve ever heard. No real hard questions from the right. Mandate is in trouble.”

... and Toobin is more blunt in his assessment:

"This was a train wreck for the Obama administration .... This law looks like it's going to be struck down. I'm telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong... if I had to bet today I would bet that this court is going to strike down the individual mandate."

So it looks like the only question left is whether the scope of the opinion will be narrowly tailored to nix the individual mandate, or if the majority in the court will strike for bigger gold in limiting the commerce clause.

The Washington Post interviews Randy Barnett of Georgetown Law and captures his take on the issue at hand ...

... the duty to pay taxes is part of your duty to support the government in return for the protections the government gives you. What the government is claiming here is this power — and this ought to disturb people on the left — to make people do business with private companies when Congress thinks it’s convenient.

That's a fair encapsulation of why I've consistently found the individual mandate troubling. The argument that we're all engaged in the health care market, hence we should pay for it by some means, is problematic on logical grounds. First, the only reason it's offered is because of a Hippocratic Oath that doesn't exactly bind any doctor to see any patient on any grounds whatsoever. At least not in any legally codified manner that I'm familiar with. Secondly, the assumption is that the entirety of the uninsured do not manage to cover the health care costs that they end up incurring. I'm sure that the net effect is a loss of dollars, but I've not seen anything that outlines the scope of the problem (ie - what percentage of uninsured contribute to the problem). I'm uninsured since I don't know when (minus some time during 2010). I have incurred zero health care expenses in the past decade. The last time I did, I paid my bill in full. So why do I need to be forced into the insurance market against my will to fix a problem that I don't contribute to?

In sum, the so-called "health care reform" bill signed into law is, in effect, nothing more than a health insurance reform in this regard. And that brings me to the final problem I have with the mandate: why are we sanctifying the insurance market? Is that really the highlight of liberal thought, these days? ... forcing people to deal with the insurance industry? That seems a far cry even from Al Gore's trope of "the people vs the powerful."


Aggre-blogging: The Post-Christmas Lull

Still slaving over pixels, demographics, and writing. I trust that your extended weekend was better. An abbreviated news roundup as the rest of the news world took a few days off.

» San Antonio Express-News: D.C. judges see Texas bias
Standard disclaimer: you’re just not following redistricting’s legal round properly unless you’re reading Michael Li’s blog. The DC Circuit court has spoken up on Texas Redistricting … and the early news is not good for the Texas GOP. There’s also some interesting tidbits in the court’s decision regarding coalition districts. It’ll be interesting to see what that means for the HD26/137/149 corridor in the Houston area. (Related: Michael has the Houston-area Organization of Chinese-Americans’ amicus brief posted for more reading on the treatment of those three districts.)

» Wash. Post: Code for America: An elegant solution for government IT problems (Vivek Wadhwa)
It sure would be great to have local government that saw value in something like this. Just sayin’.

» New Republic: The Mandate Miscalculation (Paul Starr)
» New Repubic: Was the Mandate a Mistake? (Jonathan Cohn)
Yeah, so I’m still with Paul Starr on this one. It’s arguable that the health care mandate cost Democrats their governing majority, although I’m also of the opinion that if Obama signed into law a mandate that we all like puppies, that would have served as a suitable substitute. Still … I think the puppy thing would have faded as an issue by now. Staking your political reputation as being a “BFD” on health care reform by forcing everyone to go buy health insurance, not so much.

» Economist: The faith (and doubts) of our fathers
I’ve always found it odd that the relatively modern “War on the Founders” was a necessary pre-condition to the Christian faith. That and creationism and forced prayer in school. Steven Waldman’s “Founding Faith” is a good enough rebuttal to the first while still noting the importance that Christian faith had in the founding.

» Demos: From Citizenship To Voting: Improving Registration For New Americans
Bookmarked for future reading.

» A bit of Greg Trivia for the few who might care: I’ve never seen Van Halen with David Lee Roth. I’ve seen Van Hagar and Van Cherone (which was a great live show, FWIW). I didn’t catch either the Sammy Reunion tour of 2004 or the first DLR Reunion tour of 2007. I did manage to take in the Sam & Dave show in 2002. Dave’s voice was shot and I left after his very horrible set. But the allure lives on. Still, I may have to entertain the idea of catching this version of the reunion for a while. At least until I see how expensive the tickets are.

Van Halen - Long Version Trailer from Van Halen on Vimeo.


Pondering Mandates

» Politico: Can there be life after mandate?

Who could have guessed?

Nearly 90 percent of Republicans and 69 percent of independents want to repeal it, according to a February poll from the Kaiser Family Foundation. Even Democrats aren’t crazy about it — 51 percent want to repeal it, according to the same poll.

The most plausible alternative to the mandate could be a package of provisions designed to encourage people to buy insurance. But no alternative has emerged that would cover nearly as many people as the Congressional Budget Office says the Affordable Care Act would cover.

There could be penalties for buying coverage outside a certain month of the year, a disincentive against buying coverage only when a patient is sick. Other ideas include subsidies for buying coverage (as in the reform law) and government assistance for plans that take on sicker customers.

Of course, I'm not opposed to the idea simply because a lot of other people don't like it. I think it's just too expansive of a government mandate, especially when it's questionable as to whether it will solve the problem it's designed to address. Add to that, the fact that it can be argued that it's already taken a political party down from its majority status in one body - and likely another in the next election - and I'd humbly suggest that there were better ways to address health care coverage and/or costs.


A Mandated Roundup

I'm not even going to pretend to have enough time to dive into all of these, individually. But since they do make for some pretty good reading on the current state of either health care reform or the commerce clause (however you decide to see it), I'd be the worst blogger in the world if I didn't at least pass them on.

» NY Times: Doing the Judicial Math on Health Care (Adam Liptak)
» Tapped: The Mandate Alternative (Paul Waldman)
» NY Review of Books: Is Health Care Reform Unconstitutional? (David Cole)
» Post-Partisan: Give me liberty or give me health care (Charles Lane)
» The Plum Line: The flawed conservative case against the mandate (Greg Sargent)
» Ezra Klein: If not the insurance mandate, then what? (Derek Thompson)
» Ezra Klein: Courts are political, news at 11 (Dylan Matthews)
» Wonkbook: What the Vinson ruling means (Ezra Klein)

While there's nothing in there to make me move from my opposition to an individual mandate, I still think there's a high possibility of any constitutional ruling of it taking the commerce clause of the Constitution too far being very dangerous for a lot of other laws that rely on that clause.

Among all the reading on the topic, I do find it mildly amusing that there are still people willing to state that we just don't know whether the Supreme Court will issue a 5-4 ruling or something with more consensus. Obviously, my marker is still on a 5-4 ruling, with the likeliest scenario that it would be 5-4 against (at minimum) the mandate. Interesting to see a lot of other folks coming to that conclusion.

Among the links, the NYRB article has a good comparison to the New Deal court that's worth reading. One complaint I have with it is that I think the comparison made is a bit too broad. Cole alludes to the Court shifting from generally anti-New Deal rulings toward pro-New Deal rulings, but doesn't highlight that it was fundamentally two specific changes that had much to do with it: Justice Owen Roberts changed much of how he was voting on the court (for whatever reasons you and/or history choose to believe) and the 1937 retirement of Justice Willis Van Devanter. In other words, the court didn't simply "reverse course" ... two very specific things happened that enabled the outcome of votes on the Court to end up. I don't see much chance for similar specific changes happening to the court in a short amount of time.


Individual Mandate: The Vinson Round

I haven't thought to make any mention of the latest GOP judge to rule against health care reform. Primarily, that's because it was totally expected and it doesn't really alter anything that's already in motion for sending the issue to the Supreme Court. But since two other bloggers have an interesting take in the aftermath of Judge Vinson's ruling, who am I to leave the issue alone?

Steve Benen (Washington Monthly):

Yes, there may be folks who don't want to buy insurance, who would be penalized under the law. But under our system, those folks still get sick, still go to the hospital with medical emergencies, and -- here's the kicker -- still get care.

I don't think it requires one to disagree with this point if you merely realize that not everyone who gets the care Benen makes an example of isn't freeloading on the system. In several cases, the visits that people make to get care in these situations is not of the $10-20,000 hospital stay variety. I would suspect that the majority of these instances would not be in the far more affordable range. As to what the percentages are, I'm not sure. But I think that would be pretty vital information if you're going to lean heavily on arguing that because X-number of dollars are made into societal costs due to this situation, do the percentages of uninsured people not paying their way really necessitate a truly socialized cost on all uninsured people? Obviously, I've never been convinced of that point.

Damon Root (Reason):

Justice Anthony Kennedy often does cast the crucial fifth vote, sometimes siding with the Court’s liberal bloc, other times with the conservatives. And the legal challenge to ObamaCare certainly won’t be over until the Supreme Court weighs in. But the Kennedy-as-decider scenario also assumes that all four conservatives will vote against the individual mandate. Can we be so sure about that?

Yes, you pretty much can be sure of that. Root makes a good, solid effort to get at the underlying philosophical views of Scalia and Roberts from their writings (or worse - their Senate testimony!). But I still maintain that the only thing you need to know is the figurative letter next to the respective judges' names. Consistency isn't going to be something that the four court conservatives strive for in this instance. It will be a politically-motivated decision and the outcome of that decision is not in doubt. While I might not mind so much to see the individual mandate never come into existence, I think there's a lot more to worry about what follows from the ultimate stripping down of the commerce clause. My fear (and I'd love for this to end up being unfounded) is that the ruling may impact more than just the requirement to purchase health insurance.


Necessary and Proper

» NY Times: Terrain Shifts in Challenges to the Health Care Law

In case you were wondering what lines of argumentation the SCOTUS might look at the individual mandate on, here's the smart money pick:

The cases, which are presumed to be headed to the Supreme Court, center on whether Congress’s power to regulate interstate commerce is so expansive that it can require citizens to buy health insurance. But as the litigation advances, the “necessary and proper” clause is taking on greater prominence in briefs and oral arguments, with the Obama administration asserting that it shelters the insurance mandate and state officials arguing that it buries it.

It certainly makes sense. The Dem judges who have upheld the mandate have seemingly accepted the premise that inability to purchase health insurance is an action of it's own nature - that you are acting to have someone else pick up the tab when you ultimately go to the hospital. And they've also accepted the point that follows that - that mandating purchase of insurance is within the realm of "necessary and proper" in order to regulate that form of interstate commerce.

Now, I don't think there's anything to this that negates the fact that the decision will be made on political grounds - that's why it's a safer assumption that Alito, Roberts, Scalia, et al will overturn this portion of the law. We know what color their uniforms are and the fact that some have written opinions that would otherwise stand to be glowing in their support of something like the health insurance mandate ... we all know that they won't rule to uphold it. But even still, they'll have to base their argument on something and it certainly seems like the biggest opening for a court to rule on grounds that are murky regardless of how clearly Robert Bork thinks that Madison, Jefferson, and the gang addressed all this in the 18th century.

What I'm curious about is this: Of those people who don't purchase health insurance, how many actually end up going to a hospital and leaving the bill for someone else to pick up? I obviously don't doubt that several do and that the cost of doing so is painfully real to governments at all levels. But what's the ballpark here? 90%? ... 50%? ... 20%? Bear in mind that several people end up paying their hospital bills and that some pay back partially. But this strikes me (even if only me) as central to defining whether or not the method is really "necessary and proper" from a policy perspective.

My inclination is to pick the low end of the range - and possibly lower than any of the options I've listed. And that fuels a bit of why I think the mandate is wrong on policy - just because you have the hammer to fix something (the mandate) doesn't mean that the problem in need of a solution (uninsured leaving govt with health care tabs) is indeed a nail.


Individual Mandates Among Us

Reading the National Review's gleeful acceptance of Judge Hudson's strike against the individual mandate (as opposed to the silence over his acceptance of the rest of the law), I can't help but wonder why the debate over the mandate keeps coming back to a comparison of the provision to buy auto insurance if you drive. Why not compare it to the laws on the books that lock up homeless folks for not purchasing (or bartering, or whatever) a residence? It would seem to me that if you want to suggest that government cannot infringe on one's right to do nothing, then the comparison to not procure a residence would be far more fitting.


Federalism as a Pretext

» Bottom Up: On the Constitutionality of ObamaCare

Interesting post by Tim Lee on the individual mandate. It's a qualified defense of it, with the use of the tax code being the point of comparison. This part of his take obviously caught my attention.

The test case for conservative seriousness about federalism was Raich v. Gonzales, the medical marijuana case. Justices Scalia and Kennedy flubbed that opportunity, ruling that a woman growing a plant in her backyard was engaging in interstate commerce and that this activity could therefore be regulated by the federal government. If Scalia and Kennedy now vote with the majority to strike down portions of ObamaCare, it will be pretty obvious that they regard federalism as little more than a flimsy pretext for invalidating statutes they don’t like. Or, worse, for giving a president they don’t like a black eye.

I fully expect Scalia, in particular, to have absolutely zero qualms about the unconstitutionality of the individual mandate. And intellectual consistency won't matter. It's a far more political court now than we've ever had in my lifetime. So Lee's conclusion is pretty prescient.


Look Who’s Mulling Now

» NY Times: Ruling Has Some Mulling the Necessity of Mandating Insurance

Not sure about the mulling part. Some of us were practically pounding a shoe on the podium about it in year's past ... and applauding then-candidate Obama when he sided against it in 2008. So far, the single best "alternative" is that proposed by Paul Starr. But it's a long time before the issue becomes timely, at least in terms of implementation.

Of course, it might be more of a story if someone other than Ben Nelson were doing the "mulling."


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