This, friends, is what judicial activism looks like.
This is district judge Roger Vinson, who was named to the federal bench in Florida by President Reagan. As you probably know, he ruled yesterday (full opinion here) that the individual mandate in the health care law is unconstitutional because it is beyond Congress’s power to regulate interstate commerce. That’s of course debatable, but as I’ve said before, I think the constitutional argument against the mandate is non-trivial.
But Vinson went much further than any other judge. He ruled that the invalidation of the mandate required that the entire health care law be struck down. According to the NY Times:
[Vinson] concluded that the insurance requirement was so “inextricably bound” to other provisions of the Affordable Care Act that its unconstitutionality required the invalidation of the entire law.
“The act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker,” Judge Vinson wrote.
That is a frankly idiotic conclusion, and it should be loudly decried by anyone, of whatever ideological stripe, and of whatever opinion regarding the health care law, who believes that judges should not legislate from the bench. Because “legislate from the bench” is precisely what Judge Vinson has done.
Fortunately, Vinson is only a district court judge, so his ruling is of limited impact. He did not issue an injunction against the law, though he concludes at the end that his declaratory judgment “is the functional equivalent of an injunction.” Frankly, I cannot see why that should be so in these circumstances, and apparently the administration doesn’t see it either, since their statements indicate that they are going ahead with implementing the law while they appeal Vinson’s ruling.
Ultimately, of course, the question of the law’s validity will wind up in the Supreme Court, so these lower court rulings mean very little. Judge Vinson’s absurdly inflated sense of his own importance is amusing, but it shouldn’t have much impact on the ongoing work of the nation. Thank goodness.
(and not commenting on validity of ruling or bill itself) if individual mandate is thrown out, then the bill falls apart. I don’t care if insurance is issued by private companies or the government, if people can pick and choose when to buy insurance based on getting sick or needing that knee replacement/fertility treatment/whatever, is doomed to fail.
…, or whatever it’s called now in the final version, could very much stand on it’s own.
MedPac was implemented in late 90s, not by the 2010 health care bill.
when Single Payer is brought forward as a solution, how do you see this being paid for? Would this be “free” (i.e., paid for by additional taxes not related to actual cost) or are you looking at this as replacing private health companies? If the second, then the adverse selection problem still stands without compulsory purchase.
If the single payer replaces private health companies, effectively putting them out of business, are the owners of the companies compensated for being put out of business?
The taxpayers? Why? That would not a government taking under any existing definition of “taking”.
If you own a businesss that makes widgets and the government opens a widget business and says, free widgets for everyone; they’re free because you pay taxes. Suddenly, I’m guessing your widget company is worth 0.
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p>Sounds like they took your business away from you. i.e. a taking.
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p>If you own a health insurance business….
…if the government confiscated your real property for “public” (though SCOTUS has recently defined that rather generously) use, and thus entitled to just compensation per the fifth amendment. Enacting law that undercuts your business isn’t a taking anymore than Wal-Mart opening locally forces your mom & pop store to close.
I’m pretty sure that the constitution does NOT limit a taking to real property. And, single payer is for the public.
I don’t believe we compensated racetrack owners when we banned dogracing, or distilleries during Prohibition. We certainly didn’t compensate slaveholders when we abolished that peculiar institution.
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p>People aren’t property. Just saying.
…but tell that to John C. Calhoun, et alia.
…they may not go out of business entirely. If we simply take the age restriction off Medicare, there would still be a market for Medicare supplemental insurance like there is now, I imagine.
No. Being out-competed by someone, including the government, is not a taking.
Computer companies should compensate typewriter manufacturers.
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p>Good lord.
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p>God, what a stupid comment.
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p>Ford, computer companies, etc aren’t the government so the constitution would not apply to them.
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p>Well, if you say so, then that’s.
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p>But, as I’m reading the thread, the issue is “single payer”. Single as in one.
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p>So, if the government forms one payer which receives taxes as revenue, that is a guarantee that “competitors” are competitors in name only. They’ve either been put out of business or taken over by Feds.
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p>Truman tried that in ’52 with the steel companies. Fifth amendment 1; Truman 0.
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p>So if you care to back up your vacuous statement with some case of precedent, please do so. Some precedent where the US has attempted to put itself in business in an existing market to the detriment of other private “competitors”.
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p>Again, Truman v. Steel.
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p>Frankly, in the case of a dumb move by Fed to single payer, a taking would probably be appropriate. The fed would just buy up health insurers and the existing IT and infrasture and consolidate THEM and operate IT. Isn’t that what’s happening under single payer? Nationalized Insurance.
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p>Call single payer what it is: a taking.
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p>Rather than bring up completely irrelevant examples such as the Youngstown Steel case, which does not support at all what you are saying, I’ll give you a directly on-point example.
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p>Medicare. And a second: Medicaid. These are single-payer systems. They are not takings. They directly answer your questions.
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p>Nice try, though.
Medicare wasn’t a taking because it didn’t put any company out of business. The problem then, whas that no company wanted to insure the elderly.
…is that there are plenty of people that insurance companies don’t want to cover. As has been amply demonstrated your interpretation of a taking is at best a stretch.
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p>Sorry, but that statement is completely false. There were plenty of elderly people who had private health insurance. However, the problem Medicare intended to address is that the government believed that this level of coverage in the market (at the time, somewhere around 50%-60% of 65+ persons) was too low and the coverage too expensive. When Medicare came along, it drove these companies out of the market.
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p>So you’re going to have to try again. You asked for a historical example, and I gave one that is directly on point. (I might also offer the Post Office, public schools and colleges, infrastructure development, national defense, Amtrak, etc.)
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p>Given that you’re the one with the convincing to do, since your understanding of takings has little basis in actual legal or historical precedent, I think your lack of response to my clear example of Medicare is telling.
your last point about the “adverse selection problem” still follows under a single-payer plan. Since we already have major single-payer plan in the US (Medicare), I’d imagine an expansion of single-payer would simply follow in this model.
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p>If the program is financed by a broad-based tax in a single-payer system, I’m not sure why “the adverse selection problem still stands”.
that the “public option” (i.e., a government run insurance company as an alternative to private insurance) touted in the HCR debate was not portrayed accurately. If an option (i.e., people still have to come up with insurance premiums) then adverse selection still applies.
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p>Obviously no adverse selection if the “public option” you want is complete government takeover by financing solely with general tax revenue. Of course you’re also confirming the Tea Party types worst fears…
Though I’m not convinced that the model will collapse if every insurer is forced to use the same business model. The out-of-pocket mandate stinks because young and healthy people making very little have to bet AGAINST the odds of their actually needing insurance.
So, there ya go.
a significantly more substantive criticism than is calling the decision “activist.”
I’m not particularly worried about Vinson’s decision on the mandate itself – as I said, I think that one’s debatable. But his severability analysis, in which he concludes that the whole law has to be junked because of his conclusion on the mandate, is an absurd example of overreaching. It is, in fact, “legislating from the bench.” It is, in fact, “activist.” Those words do have meaning, and this seems to me an excellent illustration of that.
that, in general, people use the word “activist” to describe decisions with which they disagree. I think that’s unfortunate.
Or wrong, for that matter.
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p>I don’t know enough about the issue to make much of a substantive point, but I was at least under an assumption that severability is presumed, which seems to be a point not well addressed here.
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p>On the individual mandate as well, the opinion reads more like a first draft for Kennedy (a guy who isn’t supposed to bound by precedent established by senior courts) than a District Court opinion, so I’ll go for arrogant, as well.
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p>The model for a district court in that position is to pen an opinion of how it should be, followed by a “But…” since the circuit court is populated by nitwits and asshats, they have held otherwise, and I am therefore compelled to do XYZ, even though XYZ is awful and dumb.
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p>Honestly, I don’t think “activist” has much meaning at all at this point outside of a purely political context. As evidence of this, I count Bob’s posting below about overturning legislation. This is what liberals sometimes mean when they say “activist”; conservatives mean “making shit up (e.g., penumbras, etc.). Sometimes, they change the meaning depending on the desired political outcome. They aren’t talking about the same thing, neither acknowledges the other’s meaning (The situation is thus similar to the competing usages of “elitist” that perpetually confound Democrats). So, outside of the realm of political activists, the meaning has been diluted to the point of being a hyper-generic pejorative.
… the ‘error’ is designed to create an outcome he wants that steps on the legislature’s purview. It’s outcome-centric rather than legislation-centric.
And one frequently used by virtually everyone to denounce decisions with which one doesn’t like. “That judge was biased!” is something said by everyone that loses litigation. “Vinson has ties to conservatives, and is biased” have no more credibility with me than do “Justice Marshall is secretly gay, or somehow beholden to a ‘gay agenda'”.
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p>I see no reason to assume that any particular judge is fixated on achieving a certain outcome– essentially an accusation that the judge is perpetrating a fraud by sitting on the bench– absent far more evidence than this. Better to assert with confidence that the judge simply got it wrong.
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p>It is also pretty clear that some judges are better than others at writing a legal opinion. Vinson doesn’t appear to be a master of the art. That is what appeals courts are for, anyway.
… are really two different things. They can manifest together (more often) or separately (rarely). The trick here, just as before, is to look at the way the law was read in the decision. If it was read in an incredulous interpretation, you’ve got activism. If it was read merely with a biased interpretation, you may not have activism.
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p>The point here is that an incredulous interpretation is more often than not a clue (by induction) that you’ve got activism. David identified something incredulous and that’s why he’s identified it as activism.
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p>Taken from here.
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p>It wouldn’t surprise me if the basic conclusion — that conservatives use the judicial system most frequently to frustrate the will of the people as expressed through their elected representatives — is accurate.
saying that no other court, including SCOTUS, has ever ruled that without a severability clause an entire law is invalid?
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p>Far from being activist, this judge did what the founders intended. Found a law unconstitutional. He didn’t do what real activist judges do, legislate from the bench.
Madison, for example, the “father of the constitution” wrote that giving the Supreme Court the final word on the constitutionality of legislation was “never intended.”
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p>That is why judicial review isn’t written in the constitution.
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p>There are interesting arguments worth making on both sides of this issue, but I’d like to see the evidence for your blanket assertion “this judge did what the founders intended. Found a law unconstitutional.”
is either loved or revered, alternately, depending on which side — overturn or not overturn– one is on at any particular time.
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p>In any event, “finding a law unconstitutional” is almost exactly what the founders (at least the guys who actually wrote the constitution) did not intend, which is why the practice was, to put it mildly, extremely controversial in the early years of the republic. And why educated Americans– even if they aren’t lawyers– were required to read Marbury v. Madison at some point during their schooling.
And didn’t attend the constitutional convention.
…just like the words “separation of church and state” are nowhere to be found either, but in both cases there is really no avoiding it in practice. Article III charges the courts with adjudicating all cases and controversies which arise under the Constitution. Article VI says the Constitution is the supreme law of the land and all judges and officers are bound thereby. If a court is being asked to rule on a legal matter and find the law does not conform with that supreme law they have no choice but to in effect render said law null and void.
Madison probably didn’t agree with you, and he practically wrote the constitution. It is easy to “avoid it” in practice, quite to the contrary of what you write: just implement the text as written, for example, and there would be no judicial review at all since there is no provision for its existence in the document. Obviously, we have judicial review, but it wasn’t an inevitability. One elected President, now there I’ll give you an inevitability, for example, according to the terms of the constitution.
…and you have just violated your oath as a judge to uphold the Constitution if the law itself violates the Constitution. Don’t go too far with Madison; given his druthers Congress would have had plenary power to review and nullify state laws, so preference and personal thoughts probably aren’t the best gauge all the time.
Therefore, everything they do conforms to the constitution at least as much as the opinions of five Supreme Court justices. Arguably much more, because they are elected and representative democracy is an elemental principle of our system of government.
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p>Again, there is nothing in the constitution that says “Congress and the President make a law and the Supreme Court decides whether it is constitutional.” In fact, the constitution, as I have now pointed out several times, says no such thing at all. The document does provide a remedy for abuse of office, but it is impeachment, not judicial review.
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p>The remarkable thing about your argument is your acceptance of the proposition that it is easy to tell when “the law itself violates the Constitution.” If the discussion on this thread shows anything, it is that this is never clear. Given that difficulty, the reality-based approach — the most conservative position, one might say — is to go with what is written in the constitution, rather than making things up about judicial review.
that many of the most important constitutional cases are decided by split votes on the Supreme Court, often 5-4. So it’s not as if it’s so blindingly obvious even to judges whether a law violates the Constitution or not.
…that there should be a presumption of constitutionality and that the burden in court should fall upon the party challenging constitutionality. Of course members of Congress should not vote for, nor should the President sign, any bill they believe to be unconstitutional either. Impeachment is intended for treason, bribery, and high crimes/misdemeanors, not for erring on a constitutional matter. Unfortunately, politics sometimes gets in the way of the Constitution when elected representatives go with the people over the Constitution. What gives the courts their unique status is that being unelected they can uphold the Constitution in defiance of the people, though if there is broad consensus the court got it wrong, there is always amendment. The Constitution is the supreme law, and in order for that to mean anything the courts must have the ability to step in and point out where the supreme law overrides statute law.
Oh, EaBo. You should write your own edition of the Weekly Joke Revue. It could consist entirely of your comments about constitutional matters.
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p>Please, before you embarrass yourself further, cease and desist from commenting on topics about which you know nothing.
What I took away from reading that decision was that the bill had deliberately excluded severability. It had been in an earlier version of the bill and was deleted from the final version, he argues, so its omission was deliberate. Therefore, since there is no opportunity to strike down just the individual mandate, the whole law must be struck down.
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p>That makes sense to me.
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p>I realize that taking it out may have been a political choice – a gun to the head so all the deals could go through – but wasn’t that a deliberate choice?
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p>How should a judge decide to sever various clauses?
It isn’t really that simple.
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p>Yes, there is no severability clause. (What should be acknowledged here is that the absence of this clause is a rather direct consequence of the protracted nose-picking throughout 2009 engaged in by Senate Democrats, Reid and Baucus in particular, and (ii) the election of our junior Senator. Instead, liberals blame it on Obama, perhaps for not voting it out of committee when he was still a Senator.)
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p>Nevertheless, the clause doesn’t force a presumption that the whole thing has to go, there is a presumption of severability, unless the problematic provision is “absolutely essential” to the overall bill. Here, the judge relies pretty extensively on the government’s arguments that the mandate should not be overturned because it is absolutely essential to the bill. I don’t know enough about the relevant law to know why the government thought it wise to describe the mandate in this way, or if that position alone is sufficient for the judge’s finding.
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p>To me, that entire section smelled like a hoisting of the government on its own pertard. Even if that sort of judging is approriate with private parties, I don’t know that it is in this context. That will be the biggie question on appeal.
your point gets to the major problem with the judge’s decision. I’d agree that the individual mandate is essential to the operation of much of the other substance in the bill. This is precisely where the judge departs from both logic and existing law.
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p>First, he conflates the Commerce Clause analysis and necessary and proper analysis. In finding the mandate unconstitutional, he went through the analysis completely backwards. Clearly, he should have started with an analysis of whether regulating the health care market is within the power of Congress under the Commerce Clause. The answer here is clearly yes. Then, and only then should he moved on to an analysis of the individual mandate. Here, because regulating the health care market is clearly constitutional under the Commerce Clause, he should have moved on to whether the mandate was “necessary and proper” to the constitutional regulations contained elsewhere in the bill.
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p>By his own admission (and the government’s), the mandate is necessary for the remainder of the bill. Because the end is legitimate (regulate the health care market), and because the mandate is necessary, the means (the mandate) is likewise legitimate.
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p>My point being that the judge’s analysis rather bizarrely relied upon the necessity of the mandate to strike down the entire bill, when in fact the very necessity of the mandate is what makes it constitutional!
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p>Overall, a very foolish, poorly reasoned, and, yes, “activist” decision.
Although I supposed you probably have pinpointed the reason why the government contended that the mandate is essential– they needed to show “necessary”
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p>But, admittedly without much knowledge of the relevant cases, it seems like that is a wee bit of a cant miss “necessary and proper” test. Indeed, the mandate isn’t necessary at all; Congress need only adopt single payer.
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p>But, the mandate is necessary to this scheme– proves too much. Congress could simply have reformed health care by forcibly deporting any individual who requires health care costing more than $5,000 in any calendar year, perhaps to some uninhabited Pacific island.
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p>What you have suggested seems more like Justice Thomas’ characterization of the Raich majority opinion than the majority opinion itself:
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p>X is a something within Congressional authority.
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p>We choose to regulate X by Means Y.
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p>Therefore Means Y is constitutional, regardless of any other constitutional limitation.
The problem with your analogy is that a scheme to forcibly deport individuals requiring health care is in no sense “necessary” to the broad goal of “reforming health care.” The mandate, on the other hand, is necessary for the specific (and constitutional) scheme contained in this health care bill. Otherwise, the necessary and proper clause is essentially read out of the Constitution — it means nothing at all if every “means” to carry out a constitutional scheme is evaluated completely independently of the overall end of the legislation.
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p>And even if the mandate is unconstitutional, it makes little sense for the judge to go on to invalidate the entire law simply because it is “absolutely essential” to the remainder of the bill. For one, there are individual provisions that are completely irrelevant to the mandate — why not let those stand? Or better yet, why not follow established precedent and allow the remainder of the bill stand regardless of the existence of a severance clause, which is how the federal courts typically operate?
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p>Additionally, your bringing up Raich offers another reason why this judge’s opinion was incorrect — it does not make much sense when we take into account the reasoning in Raich. District court judges must follow the precedent set by higher courts, which Judge Vinson failed to do.
It would reform healthcare by making it unnecessary, and therefore quite inexpensive.
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p>Well, we have put the theoretical problems of “necessary and proper” in a nice nutshell; it is hard to find a way to make it more than useless without allowing it to swallow the constitution, and hard to put a limit on it without making it useless.
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p>I agree with your last paragraph; my quibble is that the “presumed severability” issue depends on whether the specific provision is “necessary” to the statutory scheme: if it is, then it cannot be severed. That presents a dilemma because of the “necessary and proper” argument outlined above.
I mean, this kind of stuff is outright laughable:
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p>Right, judge … pooling insurance risk across state lines is just about the same as mandating eating broccoli.
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p>Isn’t there anyone left on the bench who actually takes his/her job seriously? Or is it all on the level of AM talk radio?
This seems to me to be the biggest problem with the law.
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p>I find it amusing, but unsurprising, that liberals found the notion of an individual mandate to purchase health insurance to be an egregious over-reach by government seeking to bestow gifts upon the insurance industry, but only when the plan was still commonly called “Romneycare”. Once it became “Obamacare” it proved to be entirely uncontroversial, after all.
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p>It also strikes me that, the sturm und drang about severability aside, if/when the mandate is severed and overturned, the entire edifice falls apart anyway.
I’ve never liked the mandate, and I still don’t.
… do different in a system that upheld a private system? I don’t see a really better (or even as good) way to balance risk pools without a mandate. The problem is that as a social need, risk pools are public, but privately insured. That is, the very idea that a nation or society should be concerned about the health of the populous makes the “public’s” risk pool a kind of ‘commons’.
If the fight drags on long enough so that voters will feel its benefit, and thus the bite of its repeal or revocation, you might have some ability to actually begin to build support for single payer. If it doesn’t, the entire endeavor might well turn out to be a swing and a miss.
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p>In any event, the existence of a problem does not mean that the government must have the means at its disposal to fix it. In other words, there may not be a way for the government to balance the risk pools.
in MA, at all. All people talk about is reigning in cost, tweaking the system. (In VT, of course, the talk is all about single payer.) Therefore, it might well be that pretty quickly, the federal law will also be a “third rail” of sorts – I could see that happening pretty quick actually as the numbers of uninsured shrink rapidly. That’s what happened in MA. It might be harder on the federal level only because in MA we had a lot less further to go as far as I remember, whereas the federal subsidies/etc will really start to add up because of the sheer # of uninsured…
by the structure of how they went about doing the law.
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p>In fact, even in single payer, there’s a mandate, it just wouldn’t be called that. It would be like the FICA tax – everyone pays in, and everyone is “forced” to be covered by the state health care plan, ie automatically bought and paid for and available.
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p>The reason the Romney/Obamacare plan’s mandate is so abhorrent is that now we’re being forced to buy a private insurance, which costs too much and has crappier outcomes. We (progressives) would be a lot less unhappy if there’d been a public option, of course. But the mandate means that a young, healthy person can’t wait til they get sick to buy in – which would be the fiscally sound thing to do in a world with no mandate but no “preexisting conditions” and laws forcing HMOs to accept anyone who wants to buy health insurance at any time in their lives.
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p>I hate the mandate vehemently, but in a non-single-payer system, see its necessity.
I’m not sure that a “public option” would have fixed the mandate problem. At best, it would be a complicated nightmare. Tax everyone, then give a tax credit for anyone that buys private insurance?
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p>The mandate is like a tax, but is not a tax. That last part is why it is vulnerable.
… to the mandate is that the Government should be able to force a private transaction. Forcing a transaction with a Government agency, on the other hand, has a long precedent. Forcing a contract with a public agency with the option to use a private agency is on the same footing. Another way of phrasing that last idea is forcing a transaction which can be with either a public or private entity.
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It is single payer
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p>Actually, rather than the edifice falling apart, what getting rid of the mandate will do is essentially put insurance companies out of business, at least over the medium to long term.
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p>Things like the preexisting conditions piece would stay in the law, because no Republican wants to admit that they are against that. Without a mandate, health care costs will skyrocket, there will be even more political pressure to cap costs by imposing cost controls, and we’ll be even further down the road to a universal single-payer system.
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p>Be careful what you wish for, I suppose.
Which is why, I suspect, that David focused on the severability portion of the opinion. That is going to be the political crux of the matter.
Most liberals and progressives disliked the mandate, even when it was RomneyCare. Forcing people to buy private health insurance is not a liberal idea. We accepted it after, for whatever reason, more liberal and effective ideas for universal coverage were blocked. It was not “entirely uncontroversial”, as many diaries and comments over the years here attest.
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p>The mandate/subsidize idea is an old conservative idea, first proposed by the Heritage Foundation many years ago. That’s why Romney jumped on the idea.
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p>If you have a way to get affordable universal coverage please let us know. You don’t seem to like any of the current choices.
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p>2. End government subsidies. Individuals should pay for health insurance with after-tax dollars. Employers should not get to deduct for their “contribution.” Instead, the employee is paid a salary, and purchases things that the employee wants with whatever is left over after taxes, which things may or may not include health insurance.
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p>Things that are subsidized by the government become artificially expensive. See: rent in NYC, college tuition, toilet seats on aircraft carriers, corn. I cant find a link at the moment, but it is my understanding that the cost of health insurance roughly kept pace with inflation until the early 80s, at which point it began to exceed inflation, and then totally took off in the mid-80s.
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p>I think that this can be explained, at least in part, by changes to the tax laws in 1986. Those changes ended all kinds of things that were previously deductible, but left in place, among not many other things, tax subsidies for health insurance and home mortgage interest. I think that this subsidy plays a significant part in the ballooning costs in both of these sectors since then.
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p>3. End “pooling.” There is one pool, and that is the company’s customers.
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p>4. Retain the ban on pre-existing condition exclusions.
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p>Do I think that these things can “fix” the problem? No. But I don’t think single payer can fix them either. I do think that they would be an improvement– not as much of an improvement as would single payer, but an improvement nonetheless. If single payer continues to be politically out of reach, as I suspect it will, I would prefer that these changes be adopted.
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p>…and you are correct about this. The reason, though, I believe had less to do with changes in the tax code (though, as you say, it may play a part) than with both the ballooning costs and usage of pharmaceuticals. Especially after the Medicare Part D additions in 2003, but starting well before that — indeed, around the mid-1980s — drug utilization has increased dramatically.
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p>This may be a good thing for health and prevention overall, but the cost of drugs has outstripped inflation even in other areas of the health care economy. Because something like 50% of pharmaceutical products are already subject to single-payer (due to Medicare/Medicaid expenditures), that’s why I ultimately think price controls for drugs are in the cards. I’m not sure if your proposed solutions would necessarily do enough to curb pharmaceutical cost inflation.
Thanks.
Plenty of people don’t get insurance through their employer anymore. So lots of people out there are shopping around for it, and Sam Walton hasn’t walked through that door. Ask anyone who’s tried to buy insurance just for themselves and/or their family. It ain’t cheap; which is why most people don’t want to buy it.
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p>Health insurance differs from most other insurances. They are event based; some event triggers a payment (death, auto accident, tree falls on your house, slip and fall, etc.) Healthcare is a transaction insurance: it’s paying for transactions: doctor visits, prescriptions, ER visits, hospitalizations.
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p>This gets everyone into utilization battles. And the battle over who pays for what. That’s why the pre-existing condition thing is so big; those can impose a huge cost on a system. The economics don’t work, unless everyone is in. Or, we create some kind of reinsurance pool (that word again) to cover these cases.
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p>You can choose not to buy health insurance, but that affects the cost of insurance for the rest of us, if you need any kind of healthcare. “Free care” isn’t free, except to you. The rest of us pay for us. Usually by our insurers (not the government) subsidizing the cost. That’s why the mandate was a conservative idea: it enforced personal responsibility.
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p>Insurance works by spreading costs over a pool of people. The lower the costs, or the bigger the pool, the cheaper the insurance. Large pools also have more market clout and can negotiate lower costs with providers, or they can better standardize care based on the knowledge in their databases.
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It forces the public to enrich private businesses — in this case, one exempted even from minimal consumer protections like antitrust regulations. That seems wrong to me. There has to be a public option to keep the insurance companies honest, as someone once said.
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p>Sloppy generalizations frequently accompany a weak argument, as you may be aware.
For me the mandate has always been problematic. As written, the bill feels a bit like a bargain with the insurance industry. You must cover x, y, and z, but here’s the good news, you have new customers, and not all of them are sick. It’s win-win.
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p>Strip the mandate, and you have a different law. That part makes me feel like the judge overreached. But you’re left with a sweeping set of insurance regulations, and there is a lot of precedent for the government’s authority to regulate.
did anyone argue against his legal reasoning on the matter?
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p>(and earlier…)
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p>You can call the judge and the decision names, and anyone else who disagrees with you but what legal arguments do you have in response to these? If this is truly such a bad legal decision, I’d expect to see some.
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the only thing properly before the judge was the statute Congress actually enacted, not its entire legislative history. Furthermore, statutes are always presumed to be severable, regardless of the presence or absence of a severability clause, unless there’s a provision specifically stating that the statute is not severable, which of course there isn’t.
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p>The concessions regarding severability by the government may have been ill-advised as a tactical matter, but the simple fact is that if you excise the individual mandate, you still have an entirely functional statute that will work just fine. It may create a political problem, in that the health insurers will go ballistic, or an economic problem, in that (supposedly) the health insurers will go broke. But political and economic problems of that scope are well outside the competence of the federal judiciary.
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p>At least, that’s what the conservatives have been telling us.
You seem to claim that all statutes are severable except those written explicitly not to be. If that were the case, then severability clauses would be moot. Why would anyone bother to put one in anywhere if they are of no use? And yet you see them in most contracts.
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p>The judge addresses this directly, using the terms “not necessarily”, which I think is superior to your “never”:
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p>As for tactical errors, it appears that they extend beyond the early lawmaking stages (that is, if you wish to call them mere tactical errors) and into the case itself:
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p>Now, eventually, “tactics”, or in this case the presentation of the legal case, is going to have some bearing on the outcome. Potentially anyway. Thats why lawyers make the big bucks, isn’t it? Back to the history of the law, though:
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p>I don’t think your preference (or Scalia’s??) trumps, here.
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p>Anyway, then he gets into his analysis of why this one falls on the unseverable side of the “not necessarily” fence:
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p>it goes on from there… :
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p>It continues to explain the reasoning after this but the post is getting big so – I’m sure you know where to find it 🙂 It seems extensive and well reasoned, to me.
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p>Anyway, simply claiming “everything is always severable unless explicitly stated otherwise” does not seem like a valid legal argument to me.
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The reason why Judge Vinson’s decision regarding severability is flawed is that it creates a new standard not based upon precedent. That, of course, is not the role of the district court judge.
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p>The key case is Free Enterprise Fund P v. Public Company Accounting Oversight Board, which was written by Justice Roberts only two years ago. This case involved the constitutionality of a provision of the Sarbanes-Oxley bill, which (just like the health care bill) contained no severability provision.
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p>Judge Vinson cites the case, but then changes the standard. Instead of relying upon the “fully operative of a law” standard, he changes it to a standard of whether a legislative “goal would be undermined if a central part of the legislation is found to be unconstitutional.” Roberts’s opinion clearly wanted to avoid striking down the entirety of Sarbanes-Oxley, regardless of the absence of a severability clause, on judicial restraint grounds. Yet this reasoning is glossed over by Judge Vinson.
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p>In short, Judge Vinson decided that he would play Supreme Court Justice for a day and disregard precedent in favor of newly invented standards and reference to first principles. SCOTUS can do that; a federal district court judge cannot. That’s where he went wrong.
SCOTUS can make up new laws but other courts cannot? Why?
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p>Judiciary is not legislative, for a reason which does not change based on the level of judiciary. Whether they “can” (i.e. get away with it) at the various levels is a separate question. Writing law is certainly not the purpose of the judicial branch.
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p>Or, cite me something that says the supreme court, separate from the rest of the judiciary, is empowered (by the constitution, perhaps?) to create new law or change settled law?
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p>In any case feel free to cite your sources for the main point of your post (SOX) I’d be interested in reading them.
You keep rewriting what I (and others) say, and then explaining why they’re wrong. A typical conservative strategy, but an annoying one.
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p>Here’s what you said:
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p>Ah, but of course, I never said that “everything is always severable.” What I said is (emphasis added):
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p>It’s a presumption. The burden is on the party claiming non-severability to rebut the presumption. And, as I said earlier, non-severability has clearly not been rebutted in this case, because the law works just fine without the mandate (not from a political or economic perspective, maybe, but those considerations are outside a judge’s competence).
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p>As for this,
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p>Come on now. SCOTUS can, and does, lay down and, from time to time, alter the standards by which courts are supposed to evaluate certain questions. Once it has done so, lower courts are required to follow them. As Hoyapaul accurately points out, Judge Vinson did not do so in this case.
…especially if a lot of time has passed since SCOTUS precedent was set, that a lower court might want to test the waters and rule contrary to precedent. After all, SCOTUS has been known to rewrite precedent, which it wouldn’t get a chance to do if the case in question did not work its way up through lower courts.
It might want to. But if it actually did so, it would not be doing its job. It really is as simple as that.
I can’t come up with examples at the moment, but it seems reasonable that a lower court judge might think the current composition of the SCOTUS would rule differently and set the process in motion for a new ruling.
But it is entirely improper for a lower court judge to presume that, because of a change in membership, the SCOTUS might reconsider precedent.
For me this is a key factor in how case law evolves.
Lower courts are obligated to follow precedent – it is, after all, the law of the land. If they refuse to do so, either because they disagree with it or they have an inkling that the Supreme Court might change its mind, they are violating their oaths of office and frankly should be impeached.
…for a decision from the bench, unless that decision stems from corruption. If Bowers v. Hardwick were still prevailing case law and in the years since science more and more showed that homosexuality was a trait rather than a choice, of course that would be a case that I would want to be bound by reading of the Constitution consistent with recent developments rather than consistent with a quarter-century old case. If the losing side doesn’t like it they can appeal; I won’t take it personally. SCOTUS is always free to take the case and reaffirm the precedent as a way of correcting a district judge’s ruling. However, I see the Constitution as a living document that not only can, but must be open to reinterpretation from time to time via fresh cases and controversies to re-examine the issues.
I would prefer that judges follow the law of the land and respect their oath of office.
Is for the district court to write an extensive “this is how it SHOULD be, because XYZ, but, alas, no” opinion along with a pointed suggestion to counsel on where to find a good form of notice of appeal.
Here is an excellent example, by the always entertaining Richard Posner of the 7th Circuit Court of Appeals.
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p>That’s how it’s done. And it worked – the Supreme Court accepted that case for review and overruled Albrecht.
Well, if you really believe that SCOTUS does not generate new law through the promulgation of new judicial standards, than you’ve missed the last 207 years since Marbury v. Madison. It’s the nature of the judicial review beast that (for better or worse) the Court makes new law or changes settled law. That’s why happens when the Constitution is so vague. However, lower courts are bound by Supreme Court precedent. The Supreme Court itself may typically defer to precedent, but it can and has changed settled law in the past. If you don’t like this, than you don’t like judicial review. That’s fine, but it also must mean that you REALLY don’t like Judge Vinson’s decision. Otherwise, your argument isn’t consistent.
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p>As far as my “sources” about my post about SOX, I gave you the case (Free Enterprise Fund v. Public Company Accounting Oversight Board). I assume you can use The Google to find the case. Then look at Part IV of Justice Roberts’s opinion.
..Judicial ‘activism’ with judges restraining the Government.
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p>The Constitution is a set of defined powers and LIMITS on the power of government.
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p>Anything that restrains government action isn’t Activism. The activists where in the Congress who didn’t care if something was Constitutional, they just really wanted to pass it.
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p>i.e. this doesn’t “create new law” but simply stops an unconstitutional law from going into effect.
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p>BTW, you want to be upset, blame the maroons who didn’t put a Severability Clause in the Act. Guess that Scott Brown Election really did kill Obamacare. Tey never had a chance to as a Severability Clause in Conference Committee.
No point in commenting further.
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p>I wonder how your statement would fly with most contemporary conservatives.
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p>After all, Miranda, Roe v. Wade, and the Guantanamo cases all “retrained government action.” I assume you believe that if SCOTUS struck down a ban on same-sex marriage it wouldn’t be “activism” either?
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p>And, could I point out just one little, little thing to you? The Supreme Court and lower courts are part of “government.” When the courts act and strike down a law as unconstitutional, they is “acting.” So if I’m against the courts striking down a law, I’m in favor of “restraining government action,” no?
Blind men and the elephant, etc. This is why I rather dislike the use of the term: it is productive of heat rather than light.
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p>I think another expample of the phenomenon is the “We’re not elitist, you’re elitist” silliness that breaks out each election season.