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March 28, 2012

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NK

AntiClimax today-- alas Medicaid and medicaid expansion is constitutional-- moronic-- but constitutional.

Clarice

Scotusblog:
Following opinions, the Court will hear the final set of oral arguments in the challenges to the Affordable Care Act. First, the Court will hear ninety minutes of argument on the severability question – what part, if any, of the Affordable Care Act can survive if the individual mandate falls – in National Federation of Independent Business v. Sebelius and Florida v. Department of Health and Human Services. Lyle Denniston has previewed the argument for the blog.

The Court will then hear one hour of argument on the Medicaid expansion issue in Florida v. Department of Health and Human Services, which Lyle has also previewed.

Clarice

I don't tink the severability issue is exactly anticlimax.

Porchlight

I worry that Kennedy is just trying to bond with me and reassure me that he "gets it" before going all statist.

Me, too.

Is severability today? If so, I agree with Clarice - this is where the knuckles get white.

NK

Clarice- Fair enough about severability. While my recorded vote is that Kennedy invalids the Mandate, my vote is that he severs. I can't see him going "Full Monty" and invalidating the whole law. The 'cool' people in DC would shun him forever.

Jane (Where is Jon Corzine?)

I worry that Kennedy is just trying to bond with me and reassure me that he "gets it" before going all statist.

Me too, but, Kennedy does have a history of being opposed to the expansion of the commerce clause and in doing so he will invalidate every talking head in the universe who left or right proclaimed the mandate toast after yesterday's hearing.

Cecil Turner

I'm feeling pretty good about my earlier prediction :

I'd guess it to be more like 5-4 against, along the usual ideological lines.

Rick Ballard

NK,

I understand the 'cool kids' argument re Kennedy but he also has to deal with the overpowering stench of Kelo and the fact that his grandchildren and great-grandchildren have been fitted with serf's collars to pay for the ineluctable result of the idiocy embodied in Wickard. I believe that the OPM crop failure provides an opportunity for the priests and priestesses of the great Oracle of the Emanating Penumbra to carefully examine the possibility that the slippery slope terminates at the edge of an abyss.

not_bubarooni

I wandered over to Morning Joe for the first time in like for evah today to see them cry.

However, after watching that I am of the understanding that while things didn't go well for the SG yesterday, you just can't infer to much from that tough line of questioning.

It's also pretty clear from that sophisticated banter I heard on the show this morning that only a rube could confuse this issue with buying broccoli.

I'm not sure the Supreme's get it or not but that fine legal mind of Donny Deutsch sure does have it all figured out.

Steve

I see a big downside to the court overturning the individual mandate. The country voted for a congress and president who campaigned on national health care. Congress deliberated a long time, academics and industry were included in the design of the plan. Congress voted. The president signed the law. Republicans say they want to overturn, but propose no alternative plan. If the court overturns, esp on a 5-4 vote, that will be judicial activism like we have never seen.

Clarice

I'll feel really great if they vote against the mandate --I think it was a long time ago that I wrote about Barnett's view on the mandate's overreach and I endorsed his argument.
About 2 years ago I wrote about the severability issue. I haven't reviewed it since so I don't know if I missed anything.
http://pjmedia.com/blog/is-the-individual-mandate-severable-from-the-rest-of-obamacare/

Porchlight

Steve,

If I'm reading you correctly, the downside you see is that liberals will call this judicial activism if it doesn't go their way.

So?

NK

RickB@11:09-- hope you're right about kennedy, but I doubt it. Anyway-- the ultimate resolution is electing 50+ repub senators, repealing ALL OF Obamacare by reconciliation and having a Repub sign the repeal -- and then changing insurance laws to be more free market, and limiting punitive damages and reducing the cost of defensive medicene. More Liberty, less government. Better way.

Porchlight

Clarice,

Here is Taranto interviewing Barnett about the mandate back in July 2010. For some reason I've had it on my favorites bar this whole time:

WSJ: "A Commandeering Of The People"

“What is the individual mandate?” Mr. Barnett says. “I’ll tell you what the individual mandate, in reality, is. It is a commandeering of the people. . . . Now, is there a rule of law preventing that? No. Why isn’t there a rule of law preventing that? Because it’s never been done before. What’s bothering people about the mandate? This fact. It’s intuitive to them. People don’t even know how to explain it, but there’s something different about this, because it’s a commandeering of the people as a whole. . . . We commandeer people to serve in the military, to serve on juries, and to file a return and pay their taxes. That’s all we commandeer the people to do. This is a new kind of commandeering, and it’s offensive to a lot of people.”
Captain Hate

If Steve cared half as much for the lack of manufacturing jobs as he claims to, he'd support the end of Bammycare.

Steve

"... If I'm reading you correctly, the downside you see is that liberals will call this judicial activism if it doesn't go their way. ..."

It will be judicial activism. If the government cannot force people to buy HI, then it cannot also force medical care providers to provide care to people who do not have the money to pay. And it cannot also force HI sellers to sell at a set price and to cover illnesses they would not cover otherwise. I do not think the government has the right to do any of these things, but the court cannot come along and single out one mandate and allow the others. Esp after the country knowingly voted for the law.

Clarice

You know if the mandate is declared unconstitutional, Barnett deserves a lot of the credit. He stuck his neck out on this argument against a field of legal experts who lacked his courage.

Threadkiller

It sure ain't Prop 8 activism, Steve.

Ignatz

I may (and should) get slapped for this but by Steve's reasoning if

The country voted for a congress and president who campaigned on national health care abrogating free speech and freedom of religion. Congress deliberated a long time, academics and industry were included in the design of the plan. Congress voted. The president signed the law. Republicans say they want to overturn, but propose no alternative plan. If the court overturns, esp on a 5-4 vote, that will be judicial activism like we have never seen.

If the court overturns something as unconstitutional that somebody campaigned on it equals judicial activism like we've never seen?
God damnit why can't this country manufacture better trolls?

Cecil Turner

It will be judicial activism.

Upholding enumerated powers is "judicial activism"? If the goal is to discredit the term, that's a good argument.

Steve

"... If Steve cared half as much for the lack of manufacturing jobs as he claims to, he'd support the end of Bammycare. ..."

Domestically, I am all for free markets. I am also for democracy. The people voted for the national health care law. If the HI mandate was phrased as a tax deduction or tax credit, there would be no grounds for appeal. The court should not even be hearing the case.

NK

SCOTUSBlog has 2 updates from Oral argment on severability-- Kagan appears to be fighting rear guard action to save the Act if the Mandate goes down; Scalia as usual adds wit to the proceedings: http://www.scotusblog.com/

Clarice

Really, the vote was on Christmas Eve on a stripped out and reconstituted bill no one ever read, steve. I'm getting old and forgetful but not THAT forgetful.

DebinNC

At 7:00 a.m., Insty linked to pics of the SC rally Janet attended yesterday. I think the pic 7th down is of Janet's sign, so when she shows up I hope someone will encourage her to check it out.

NK

Let's be clear about something when we say we support "free markets". Markets are made up of free men and women engaging one another and making decisions about value, economic value, personal value, religious value etc. REGULATED 'markets' are a seperate entity (usually called government)stepping in and imposing outside rules limiting the free decisions men and women can make. In some cases, a market will fail because of intrinsic issues-- that is where a regulated market is needed to prevent market failure. So generally, if you say you support markets you are supporting free men and women. If you say you support regulation-- you support bureaucrats. Simple choice really.

Jim,MtnViewCA,USA

"Republicans...propose no alternative plan."

While the bill was being debated I saw a lot of Repub plans in blogs but they never seemed to get media coverage.
Possibly Steve's choice of media prevented him from getting a full picture.

Porchlight

If the government cannot force people to buy HI, then it cannot also force medical care providers to provide care to people who do not have the money to pay.

People/buy/health insurance

vs

Medical providers/care/people who don't have the money to pay


Yep, totally equivalent.

rse

Steve-before obamacare the obligation to provide care only affected providers who participated in federal healthcare programs. That's why you see doctors who say I do not take medicare or medicaid. With federal dollars come strings.

Last night's news really was pushing the idea that obamacare is necessary to do something about the problems with the emergency rooms. Pointing to a real problem and hoping the viewers do not have independent knowledge that obamacare will likely make it worse.

Jane-isn't that the Mass experience?

I am reading Martha Nussbaum this am clarifying. All I can think of when I take a break is envisioning her and bo and cass and elena sitting and discussing how to eliminate the US preoccupation with negative liberties.

And guess what? Health care and education are their primary envisioned vehicles.

Steve

"... If the court overturns something as unconstitutional that somebody campaigned on it equals judicial activism like we've never seen? ..."

How is it constitutional to force hospitals to treat the poor? Or set HI rates which effectively force young people to overpay for their coverage? The point is, it is all unconsititutional to a degree. The court cannot pick and choose which unconstitutional commercial regulation it is going to overturn.

Ignatz

--The court cannot pick and choose which unconstitutional commercial regulation it is going to overturn.--

It can't?
Hasn't it been doing exactly that since at least John Marshall?

OK, now I'm slapping myself.

Jane (Where is Jon Corzine?)

Congress deliberated a long time

Not one Senator or Rep read the bill, it only passed by bribing several elected officials with our money, and they voted on it on Christmas Eve when everyone wanted to go home.

Yeah that is exactly what our founding fathers envisioned.

AliceH

There must be a dozen "most irritating to me" issues on this Obamacare stuff, but the lazy and/or purposeful conflation of health CARE with health INSURANCE is definitely one of them. Right next to it is the redefinition of "access" to mean "somebody else's is buying".

Clarice

Definitely Janet's sign. She knew datechguy had snapped it.

NK

OT-- Bernanke interviewed by that nitwit diane sawyer-- 2 old wrinkled DC power celebs-- (DC is a celebrity culture, like Hollywood except for ugly people). Below is a quote-- Ben cracks down on the EEEEVIL BANX-- right while he monetizes the $6TRILLION debt 'Bam and the dems have created, no risk in doing that-- right?. I cry and laugh at the same time, the quote:

CHAIRMAN BERNANKE: Which they don't like. And you know, we're gonna be much tougher. And we have-- very importantly--

DIANE SAWYER: Tougher still?

CHAIRMAN BERNANKE: We continue to be tougher and we'll continue to-- add-- the rules necessary to make sure that they're-- operating in a safe manner, in a way that doesn't endanger-- our economic system. In terms of lending we've emphasized to the banks the importance of making loans to-- to good borrowers, that's-- that's the reason the financial system's so important because-- our system lives on credit.


AliceH

I suspect Steve is unaware that what Obama campaigned on was NO MANDATE.

MarkO

The Congress can do all of this with a tax. Come on. If it is that important, it can pass with a tax.

NK

AliceH-- I believe 'Bam said the mandate was immoral and unconstitutional in 2007.

centralcal

Ed Henry ‏ @edhenryTV
Deputy Solicitor General Edwin Kneedler noted parts of health law already in effect like adult kids' coverage through parents ....

Ed Henry ‏ @edhenryTV
Justice Scalia shot back, “It’s going to bankrupt the insurance companies,” per Fox's Lee Ross inside the court

centralcal

Breaking News ‏ @BreakingNews
More: Conservative US Supreme Court Justice Scalia says believes entire health care law should fall without insurance mandate - @Reuters

NK

MarkO- you are correct-- Congress can do Obamacare IN FULL by increasing total Fed tax receipts from current $2.4TRILLION/year to $3.5TRILLION/year PLUS $200B MORE EVERY year forever. That'll work....

Enlightened

OT - sorta

This morning as I was getting ready for work, there was a commercial for the Avon breast cancer walk. They have now inserted a statement that says (paraphrasing) "to help under-insured women get the care they need".....looks like a dig at Komen and the PP brouhaha, and also neatly folds into the "Women's Health Care" meme Bambi et al are pressing.....

Porchlight

Go Scalia. People really thought he was a possible vote to uphold?

Clarice

Some at scotusblog think the difficulty of finding what to drop if the mandate falls will cause some to rethink canning the mandate. I think another view is more cheering and I go with it:

"The Court is really struggling with severability. Generally speaking, the more conservative the member the more likely they were to believe that more would have to be invalidated. Justice Scalia would strike down the entire Act. Most likely would be guarantee issue, community rating and some other pieces essential to keeping insurance prices low. Tea leaves suggested that Justice Kennedy would vote to invalidate the mandate but nothing super-clear. Farr was excellent."

Clarice

If they don't overturn the other parts, there are other arguments and cases for those--like the religious conscience and States rights claims,

And then there's great reason for Congress to just repeal it themselves as unworkable.

Stephanie

just got a request from K for some suggestions for an essay she has to write for school...

She has to write a 6 page essay on a figure who suffered from social injustice. (barf)

After getting over the vomiting caused by this assignment, I'd like to suggest someone that will give the professor angina. ;) Any suggestions?


NK

Clarice-- you don't quote LyleD at SCOTUS who grasps at straws saying the difficulty in pulling apart severability, may help the mandate.. right. My reaction -- THAT'S WHAT LAW CLERKS ARE FOR!

Janet

Thanks so much Deb!! I had seen it (posted it on my FB page). Thanks for making sure though. :)

OT - my daughter's boyfriend's fraternity has a new member -

They named him Pabst!! Hah!

centralcal

Philip Klein ‏ @philipaklein
Kennedy argued it may be more extreme to pick & choose parts of law to overturn than to just strike down the whole thing.

Ignatz

--She has to write a 6 page essay on a figure who suffered from social injustice. (barf)

After getting over the vomiting caused by this assignment, I'd like to suggest someone that will give the professor angina. ;) Any suggestions?--

George Zimmerman. :)

Captain Hate

Any suggestions?

Linda Tripp

Rick Ballard

Stephanie,

Tell her to check out the Wobblies under Wilson's reign of terror.

NK

Stephanie@1212: here's some-- Judge Bork, Dreyfus the Jew, Jesus of Nazereth, Richard Jewel, the Haditha Marines... she'll get an F, but she would have written a just essay

Threadkiller

Sheriff Joe Arpaio.

NK

PS: CLARENCE THOMAS!!!!

Threadkiller

Ted Stevens

Danube of Thought

If the court overturns, esp on a 5-4 vote, that will be judicial activism like we have never seen.

Good.

Rick Ballard

Stephanie,

West coast Japanese American citizens under Roosevelt's reign of terror. A contrast with Japanese American citizens living in Hawaii would be an amusing fillip.

NK

PPS: Japanese-American citizens interned 1942-1945 by Democrat God FDR.

NK

RickB-- great minds baby....!

Threadkiller

Brian Terry suffered a social engineering injustice.

Danube of Thought

I just posted this on a stale thread, in response to some hysterical crap from our friend Ludic after my bedtime:

God forbid, do you need your oncologist to sit you down. look you in the eye and tell you, "sorry, we don't have your Doxil injection this week because the manufacturer is scaling back production because the profit-margin isn't big enough for them to bother with it.

I've had similar conversations with my oncologist, you silly shit, and there are treatments that would be available to me only if I were even more independently wealthy than I am. I do not ask you or anybody else to pay for them, nor do I have any right to do so.

To say that the free market "causes shortages" of certain vaccines is about as dumb as saying it causes shortages of Maseratis: not everyone who wants one can have one at the market price. In the case of Maseratis, as with untold millions of products and services, the sensible man yawns and moves on.

The case of vaccines that prevent communicable disease is in an entirely different category: everyone has an interest--the public interest--in preventing their spread, so it is entirely appropriate that public funding be provided for their procurement. But their is no public interest in getting me a knee replacement, nor is there one in curing your cancer. You may think you have some "right" to go to the public trough for help, but I am at a loss to know the source of that right.

Why are drugs--other than those that halt the spread of communicable diseases--to be treated differently from all other desirable goods and services? If something can be produced and someone wants it, is that grounds for expenditure of public money for it? Please explain why.

Try lowering your voice, and knock off the economic baby-talk.

Threadkiller

I think NK's Jesus idea would certainly blow some minds.

Janet

Any suggestions?

The people that died of malaria because of Rachel Carson's book Silent Spring & the banning of DDT.

NK

TK-- an oldie but a goodie. The Passion of the Christ is an amazing moral tale, that I go to over and over for faith and secular reasons. It's human nature told in full in 6 days, and devine on the 7th.

Stephanie

Daniel Pearl?

Thomas Collins

Stephanie, my pick would be Susette Kelo.

Danube of Thought

Scooter Libby. Cap Weinberger.

Extraneus

The people whose places Barack, Michelle and Derrick Bell took at HLS.

Thomas Collins

Ray Donovan would be another good one.

NK

What suggestions-- this is the best place on the internet.

Thomas Collins

Ayaan Hirsi Ali and Salman Rushdie also come to mind.

AliceH

Stephanie: The internment of GERMAN-American citizens during WWII is possibly more interesting, given so few seem to even be aware of it. One might even spend a paragraph or two on the "continued social injustice" of their plight still not being treated as equal to the plight of their fellow interned non-German American citizens.

NK

AliceH-- OK you got me-- under which Exec Order did FDR intern German-Americans?

pagar

Right on Jane!

"Not one Senator or Rep read the bill,"

I enter computer sites ran by the US govt that contain info for me from some portion of the US govt. On every site there is a message that the user has read and understand the user agreement for the site, in order to proceed farther. I do not understand why that message is not required for each and every bill the Senators/Representatives vote on. Either they have read and understand the bill or they are not allowed to vote on it.

In the case of the Obama care bill, I believe there was serious fraud:

ObamaCare Has Revealed The Moral Bankruptcy Of The Senate

"n fact, there are so many bribes in the Senate version of the ObamaCare bill that the bribe-meister himself, Majority Leader Harry Reid, publicly bragged that if your senator doesn't have a bribe in this bill, it "speaks poorly" of him."

http://gunowners.org/a010710.htm

Bribes, threats, extortion, all throughout the bill. If the Mafia tried the same thing every one of them would be in jail.

GMAX

Why in the world should the Supremes trouble themselves over what should fall? Its not their fault the Democrats did not put a very standard severability clause into the legislation. Perhaps they intended for it all to stand or all to fall? Send it all back to the Legislature with a short note, start over and begin with the Constitution as your guide...

NK

GMAX--- apparently Antonin Scalia agrees with you.

Stephanie

Thanks guys!

I think she picked Ayaan Hirsi Ali.

Porchlight

Stephanie, let us know how it turns out. I'm late to the thread but there is also Gianna Jessen, abortion survivor.

GMAX

Why would you spend an hour on oral argument on severability unless it looks pretty likely the mandate is ruled unconstitutional. If the mandate is constitutional no need to sever, right?

Porchlight

IIRC Dems said the law was unworkable without the mandate.

So were they lying then, or are they lying now?

NK

Porch@1248-- both and always

Danube of Thought

Why would you spend an hour on oral argument on severability unless it looks pretty likely the mandate is ruled unconstitutional.

Because the scheduling was done before they knew how the mandate would come out. I seriously doubt they know at this moment. There are two months of intracourt discussions, memos and horse-trading yet to come.

Jane (Where is Jon Corzine?)

I heard that Justice Breyer was concerned about severability because the bill contained so many bribes that they shouldn't interfere with. DId anyone else hear that?

Ignatz

--occupy-san-diego-goons-throw-pi-and-blood-at-cart-vendors-after-they-quit-serving-free-hotdogs--

Did they throw a round pi or a squared one?

pagar

I see I'm late for the social injustice nomination, but I would still like to mention Robert Bork.

If it were a group nominee, I would submit the very worst is what the Democrats have done to the blacks in America/all Americans with their 24/7 assault on the American FAMILY.

NK

JaneWherisCorzine-- the MF Holding (an apt name) and JPM crew are up at 200 to testify about the vaporized customer money. No popcorn I don't think -- the O'Brien woman will have to cop to the Fifth.

rse

stephanie-Alexander Solzhenitzen would be an interesting choice. The soviets cetainly treated him in a socially unjust manner which is well known.

But radical profs here were awful to him for criticizing marxism in the form actually implemented.

Ignatz

Jeffrey Toobin says it's gone from a train wreck yesterday to a plane wreck today for the WH.
However he is also usually wrong and spectacularly so. Consequently I find myself disturbed not comforted by his prognostications.

Jane (Where is Jon Corzine?)

Is Corzone gonna be there NK?

BB Key

Toobin is playing the expectations game

AliceH

NK - I don't know details of EOs. This looks like a good site for general info and links to details: http://www.gaic.info/ShowPage.php?section=History&page=Wartime_Civil_Liberties_Violations

From what I've gathered in my brief scan, it appears that most interned Germans were not citizens, though several had family members who WERE citizens (voluntarily - more or less) join them in internment. There was more enforcement of formal/explicit exclusion and harassment than internment of citizens of German ancestry (or birth).

NK

No Corzine-- he's got his signed POTUS Pardon dated December 31,2012, covering any and all actions from the beginning of time until that date, he cares not. Corzine better have not stolen from Russian gangsters or Putin... about Pardons, they care not.

NK

AliceH-- german, italian ALIENS had to register as enemies and some were interned. Standard wartime practice-- Totally different from Japanese-American citizens. BTW and Anglophile General DID want to intern all German-American citizens-- FDR rejected that as unworkable.

NK

OT-- Timmie Geithner admits in Congress today that Senator 'bam was 'part of the problem' that caused the 2008 financial meltdown. Quote below-- Timmie better get a food taster, "bam doesn't like any criticism:

"When Geithner is reminded by freshman GOP congressman Tom Graves of Georgia that President Obama was a member of that congressional body, he's forced to admit, "Oh, I see you're point. That's a good point. He was a senator for two years. You're right."

Graves then says, "He ('Bam) had an opportunity to be part of the solution."

Geithner replies, "That's true."

narciso

Excellent choice, Stephanie, I'm reminded some very silly person, Deborah Scoggins,wrote a book a contrast between her and Aafia Siddiqui,
the MIT AQ microbiologist, and some how she found more to criticize about Ayaan, her disagreement with family, and her association
with neocons, a bearded Spock world we live in

Threadkiller
AliceH

NK: So, just to round out the topic of research for me - under which Exec Order did FDR intern Japanese-Americans?

GMAX

Jeffery Toobin is one smart dude ( first time that ever came out of my keyboard, trust me ).

LOL

Jack is Back!

Carvin is on with Megyn Kelly (she used to work with him a Jones, Day). BTW, when did they drop the Reavis and Pogue?

Anyway he is making a good point on the alternate to the Individual mandate which is to provide access to catastrophic insurance for 20 to 30 years olds who are funding the Health Care plan now by forcing them into the market. Carvin is supporting Clements view that the courts should find the whole thing unconstitutional and send it back to the Congress to fix it and keep within the constitution. Interesting conversation.

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