Oral argument at the Supreme Court has almost wrapped up on the crucial question whether the individual mandate is constitutional. And, based on early reports, it’s quite possible that the answer to that question is “no.” Tom Goldstein, who writes for SCOTUSblog, writes as follows based on the questions posed to Don Verrilli (the Solicitor General) and Paul Clement (the attorney for the states challenging the mandate):
Based on the questions posed to Paul Clement, the lead attorney for the state challengers to the individual mandate, it appears that the mandate is in trouble. It is not clear whether it will be struck down, but the questions that the conservative Justices posed to Clement were not nearly as pressing as the ones they asked to Solicitor General Verrilli. On top of that, Clement delivered a superb presentation in response to the more liberal Justices’ questions. Perhaps the most interesting point to emerge so far is that Justice Kennedy’s questions suggest that he believes that the mandate has profound implications for individual liberty: he asked multiple times whether the mandate fundamentally changes the relationship between the government and individuals, so that it must surpass a special burden. At this point, the best hope for a fifth or sixth vote may be from the Chief Justice or Justice Alito, who asked hard questions to the government, but did not appear to be dismissive of the statute’s constitutionality.
I’ve thought all along that this was never going to be an easy case, and that those who blithely predicted an 8-1 decision in favor of the mandate’s constitutionality (pretty much everyone has always assumed that Thomas would vote against it) were going to be unpleasantly surprised. It’s easy to overread oral arguments, so a lot of caution is necessary at this early stage. Nonetheless, it does seem to me that, in recent years, Justices have become less reticent about “tipping their hands” at oral argument, so one has to take quite seriously the view of a seasoned observer like Goldstein that, although there are clearly four votes in favor of the mandate’s constitutionality, the fifth may prove elusive.
…that the individual mandate gets struck down.
Don’t get me wrong: I love all the progressive achievements of HCR. Being able to stay on your parents health care plan until you are 26. Being able to obtain coverage even if you have a pre-exisiting condition. Being able to hold on to your coverage even if you very sick. These are all important steps forward.
But an individual mandate without the availability of a complementary not-for-profit, public healthcare option is simply a handout to the health insurance companies. That’s part of the reason why Candidate Obama campaigned against the individual mandate, and it also explains why the health insurance companies were all celebrating the passage of HCR.
some very late questions by Justice Kennedy suggested that if he could
So, there you have it.
We’ve been looking for that for some time.
Figures, right in between when I started reading their Kennedy blog and when I clicked ‘continue’ it would happen. 😛
I was wondering if he could come up with a ‘limiting principal’ that would force the government to create a public option as a means to give people a choice? Even if that was a bare-bones option.
Atrios had a witty comment today about how none of this would all never have been a problem if we just taxed people and gave them health care. He’s right.
The guy NBC had in there said that both sides agreed that the government could force people to buy insurance if they turned up at the hospital or doctors… couldn’t Kennedy decide that to be a ‘limiting principal’ and decide that the mandate could only apply to people when they first showed up for medical care?
It’s not an ideal way to do it, but it would have the net effect that eventually everyone would be in.
He’ll find a clear refusal that limits even matter. As Justice DontGetCute said a month ago, <a href="http://vps28478.inmotionhosting.com/~bluema24/2012/02/barefoot-and-pregnant-why-birth-control-matters-to-women/#comment-287429"you guys see no limit! Stomv claimed he can’t see a difference between paying people in money to spend how they like, and just giving them what the government says they need. MrLynne says “that’s life” we all have to accept things that the government imposes on us. I’m so glad Justice Kennedy is focusing on the principle at stake here, that freedom and liberty means the government cannot tell people what to buy with our own money, and that there is no limiting principle once we start mandating how we spend our own money.
How cool is it that the actual audio of the argument is available?
Anyway, I listened to it on the drive in today, and was a little bit stunned to find that the guy defending the law, the Solicitor General I guess, did not seem to be particularly prepared for this obvious and crucial question.
Sheesh. Terrible job.
it’s not the end of the world.
As I’ve read (sorry, I can’t link it) the mandate only ‘saves’ consumers about 2% in total costs, so the notion that without the mandate, costs will spiral out of control until only the sick and then sickest have health insurance is pretty much IMO bunk.
What’s more worrisome is that without the mandate, there’s no way to get everyone to buy health insurance. That was a fundamental flaw with the bill. It should have started at a Point A (medicare for all, perhaps) and then let people get optional Point Bs.
And don’t tell me the President couldn’t have got those last few votes in the Senate going that route. He couldn’t have gone MUCH further in pushing for his health care reform than he did. He could have exerted the same kind of pressure on conservative democrats as he did liberal ones. He could have gone to their states and held town meeting after town meeting after town meeting, shaming them and making it clear that the DNC will support a primary challenge if they didn’t go along.
He could have privately threatened to derail any of their priorities if they didn’t go along, making them toxic back home. He could have demanded Reid throw them out of any good committees and, for Lieberman, entirely tossed him out of the caucus.
The point is there were options on the table, but the President wasn’t willing to fight tooth and nail to get him, because he’s Mr. Sunny Sunshine who wants (or at least wanted) every last conservative to like him. By losing the public option and not doing a medicare for all type deal, he may very well have torpedoes his own bill in our conservative courts.
If there is no mandate to buy health insurance, but the only health insurance available for us to choose to buy is mandated to include all the bells and whistles like prescription drug coverage, contraception, abortion, sex change surgery, etc, then we are forced to subsidize those things if we only want to protect ourselves against illness and injury. The mandate is the minimum credible coverage, the lack of choice about what we spend our money on.
Basic health care (ear aches, blood tests, generic drugs, inexpensive surgery, etc) should be free and paid for by the government, people should not have to sign up for that, everyone should always know they are covered and should be able to walk in to any hospital clinic to receive free care. But not get heart transplants, contraception, health clubs, expensive drug treatments, expensive surgery, sex changes, etc. If you want to be “insured” against those things, then you should be able to buy a supplemental private plan that covers what you want covered.
half your first sentence in, when you got to the crazy talk.
OK, forget about the specific things that are mandated here in Massachusetts and that people advocate to be mandated for all Americans, I’ll leave that out and reduce it to the basic point: it’s not just about whether we are mandated to purchase insurance or whether we can choose to be uninsured, it is that when do choose to purchase insurance, we are mandated to purchase “coverage” that we don’t want or need or even think other people should have.
I do want to hear a counter to health care being unique. Where I think the counter falls short. I don’t see how anyone can say that health care costs impact everyone, even before the affordable care act. What happens to a person who is not insured, there’s no costs to anyone? Bottom line, it’s unique.
“He could have gone MUCH further” is what I meant to write.
but since there is no severability clause [yes I may have misspelled that] then if one part of the law is declared unconstitutional then the entire law goes down does it not?
Severability is the topic of tomorrow morning’s argument. Some details in my post from yesterday; much more detail here.
Even if you think SCOTUS striking down the mandate itself would not be that big of a deal, there are a couple reasons why such a decision would be a big deal indeed.
First, if the Court decides that the mandate is not severable from the rest of the act, then all the other stuff in the act (Medicaid expansions, the pre-existing conditions section, etc.) goes down with it. How that is a good thing for progressive policy eludes me.
Second, and probably most importantly of all, if the Court strikes this down, this opens the door to an open season on progressive policy from the New Deal onward. The individual mandate may not be a progressive policy, but a decision striking it down would have broad implications about congressional power to enact a wide range of progressive legislation. That would be a disaster.
I would hope this would be clear in context, but I meant to say he *could have gone much farther in supporting the bill.
It was passed by the Congress and signed by the President, all of whom have taken an oath of fidelity to the Constitution.
And what makes you think they will actually follow that oath?
We’ve already seen laws passed that are on very questionable grounds constitutionally such as ACA and NDAA.
If you don’t want to count oaths, then the oaths of the Justices are just the same. Which leaves us right where we started: of course it is constitutional.
Bob’s views on this subject are … unorthodox. 😉
but also containing a great deal of truth.
The notion that the Supreme Court ought to have the final word on all constitutional issues is pure fiction and has no basis in either American constitutional theory or actual practice. The Court is one of three constitutional branches, not the whole enchilada.
I’ve actually seen con law professors make similar, albiet not quite as all-encompassing, arguments… with them basically saying that the courts get involved way, way, way too often, instead of recognizing the important role congress plays.
I agree that legislation as enacted should bear the presumption of constitutionality, for reasons similar to his, and that therefore the burden of proof should fall on the party trying to show unconstitutionality. I would not, however, go as far as to say that anything so enacted is definitely constitutional. After all, we can all think of laws that could be passed which are pretty obviously unconstitutional, right?
The question Bob is getting at is, “who decides?” Stated otherwise, what does it mean for a law to be unconstitutional? One view (the “judicial supremacy” view) is that a law is unconstitutional if five Supreme Court Justices say so. Another (Bob’s view, the “elected branches always win” view) is that a law is constitutional if passed by the Congress and signed by the President, or enacted by Congress over the President’s veto. And one can imagine other possibilities.
To your question:
Sure – how about, say, a law that made it a crime, punishable by prison time, to distribute a flyer opposing mandatory conscription? Clearly that’s political speech, and therefore clearly such a law would be unconstitutional – today. But it wasn’t in 1919.
If the court were to determine that government “mandating” health coverage was unconstitutional, in the hypothetical scenario where we were ever have a Congress and Senate willing to try again, wouldn’t it be easy enough to rewrite the legislation to have a health care “incentive” instead? Anyone with minimum creditable coverage gets $X tax credit?
I found myself thinking more or less exactly the same thing while listening to parts of the oral argument today. What the current law poses is a choice: carry “minimum creditable coverage,” or pay a (relatively small) tax penalty. That is said to create enormous constitutional problems. But if you flip it around, and give everyone who carries minimum creditable coverage a tax credit the same size as what their penalty would have been, no constitutional problem whatsoever. And yet, the two seem economically indistinguishable, don’t they? (Maybe in the second scenario you have to very slightly raise taxes for everyone in order to get the numbers to work out the same, since presumably there will be a lot of people getting the tax credit, where as in the first scenario only a few people would pay the penalty.)
Congress would have to raise taxes in order to give the tax credit. Are Congressional Dems more likely to want to create a health care mandate than to raise taxes? I wonder if that’s the reason they didn’t try this method.
Liberals should agree that we should count employer contributions to health insurance as taxable income, because that system is regressive and benefits the richest with the best health care plans. But Liberals tend to belong to unions and work for schools and governments, so they are the recipients of those union-negotiated gold-plated health plans, so they are reluctant to level the playing field. In 2008, liberals made attack ads about how McCain wanted to “tax health care” when they should have been applauding the leveling of the playing field and the end of a regressive unequal system that favored the rich and connected. This is the biggest corruption ruining society right now.
Remember McCain’s refundable tax credit to purchase heath insurance? The key difference was that under the McCain refundable tax credit plan, each person could choose what their plan covered, and if they wanted to, could spend more of their own money to have more things covered, like exercise clubs.
Regarding emergency rooms, why not mandate that hospitals also have a lower-cost clinic next door to the Emergency Room, staffed by competent nurses who can quickly and cheaply treat walk-ins, and only send them into the Emergency Room if they need to.
Affordable health care for all americans is a matter of National Security.
So there.
from FireDogLake:
Then it was Paul Clement’s turn, representing the 26 states that filed this case. He complains bitterly that Congress is forcing individuals into the insurance market to subsidize those who already have health insurance to lower the rates. That’s one way to phrase the free rider problem that plagues the current system to the tune of billions of dollars. Justice Ginsburg explains Social Security to Clement.
There was a big fuss about that in the beginning because a lot of people said — maybe some people still do today — I could do much better if the government left me alone. I’d go into the private market, I’d buy an annuity, I’d make a great investment, and they’re forcing me to paying for this Social Security that I don’t want.
But that’s constitutional. So, if Congress could see this as a problem when we need to have a group that will subsidize the ones who are going to get the benefits, it seems to me you’re saying the only way that could be done is if the government does it itself; it can’t involve the private market, it can’t involve the private insurers. If it wants to do this, Security is its model. The government has to do -there has to be government takeover. We can’t have the insurance industry in it. Is that your position?
MR. CLEMENT: No. I don’t think it is, Justice Ginsburg. I think there are other options that are available.
The most straightforward one would be to figure out what amount of subsidy to the insurance industry is necessary to pay for guaranteed issue and community rating. And once we calculate the amount of that subsidy, we could have a tax that’s spread generally through everybody to raise the revenue to pay for that subsidy. That’s the way we pay for most subsidies.
Clement also agrees that Congress could require insurance companies to sell insurance to people at the moment of need. I bet we’d see Clement back at the Supreme Court arguing that these are unconstitutional in short order.
Imagine if, after paying for 50 years into Social Security, you finally retire, and find that instead of a check from Social Security that you can cash and spend how you want, they give you a NuvaRing, a dozen condoms, or offer you a free sex change? There is something special about cash.
blah blah blah >insert crazy, trollish comment here< blah blah blah.
You are seriously becoming the new Egg-and-Sperm guy, if that isn't secretly you already.